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GREATER EUROPEAN 
GOVERNMENTS 



BY 

A. LAWRENCE LOWELL 

PRESIDENT OF HARVARD UNIVERSITY 




CAMBRIDGE 

HARVARD UNIVERSITY PRESS 

1918 



1<» 



COPYRIGHT, 19 18 
HARVARD UNIVERSITY PRESS 



NOV 22 1918 



©C1.A508241 



PREFACE 

To take a second exposure on a photographic plate, in 
order to make the picture more accurate, is apt to have 
the opposite effect. Attempting to bring a description 
of social conditions or political institutions up to date 
is more often undertaken, but hardly with greater 
success; and when it is done in a hurry the defects are 
increased. Yet the demand for a book dealing in a 
moderate compass with the governments of the prin- 
cipal belligerents in Europe came so suddenly that it 
could be met only by using existing material with such 
few additions and corrections as seemed of primary 
importance. This volume is an abridgment of the 
author's " Government of England " which was pub- 
lished ten years ago, and of his " Governments and 
Parties in Continental Europe " published more than 
twenty years ago. Until this war the general traits of 
the political systems therein portrayed had altered 
little; and although some changes that have occurred 
since the war have been incorporated, there has been 
no attempt to cover the conditions brought about by 
the war. The object has been to show how those 
governments operate normally in time of peace, not 
how they have adjusted themselves to intense military 
stress. 

While it is believed that all important alterations that 
have taken place in the governments of the countries 



IV PREFACE 

described since the original publication have been re- 
ferred to in the notes or embodied in the text, doubtless 
some minor ones have been passed unheeded; and 
the lack of time has prevented a revision and carrying 
down to the present day of the authorities cited in the 
notes. The purpose of the book is to serve an immediate 
end: that of giving to the members of the War Aims 
Course in the Students' Army Training Corps, and to 
the many people in this country who take for the first 
time an interest in foreign nations, a picture of the 
principal governmental systems in Europe. 

The writer desires to thank the Macmillan Company 
for the permission to use extracts from the " Govern- 
ment of England "; and Dean Henry A. Yeomans of 
Harvard College for revising the chapters on France 
and Italy. 

Cambridge, Massachusetts 
November 5, 1918 



CONTENTS 

CHAPTER I 

ENGLAND: CROWN AND CABINET 

PACE 

Sources of the English Constitution 3 

The Relation of Law and Custom 4 

Powers of the Crown 5 

Legislative Power 5 

Executive Power 7 

Wide Extent of the Royal Power 9 

Powers of the Crown exercised by Ministers 10 

The King can do no Wrong n 

The Nature of Modern Responsibility 13 

The King must Follow the Advice of Ministers 14 

For WTiat Acts Ministers are Responsible 15 

Utility of Monarchy . 17 

Nature of the Cabinet 19 

The Need of Unity and Secrecy in the Cabinet 20 

The Prime Minister 22 

The Cabinet and the Ministry 22 

The Executive Departments 23 

The Permanent Civil Service 24 

Appointment by Competitive Examination 26 

Lay Chief and Expert Subordinate 27 

The Relation between Them 27 

CHAPTER II 

ENGLAND: PARLIAMENT 

The Reform Acts 29 

The Act of 1918 30 

The Constituencies : Boroughs and Counties 30 

The Universities 31 

The Franchise: Parliamentary for Men 32 

The Local Franchise for Men 32 

The Franchise for Women 33 

Candidates and Elections 34 

V 



VI CONTENTS 

The Commons' House 35 

The Speaker 35 

The Committees 36 

The Committee of the Whole 37 

Select Committees 38 

Standing or Grand Committees 40 

Procedure on Public Bills . 41 

Procedure on Money Bills 42 

The Budget 45 

The Public Accounts 45 

Framing Legislative Questions 47 

Private Members' Bills 49 

The Cabinet's Control of Legislation 50 

The Commons' Control over Administration 51 

Criticism and Censure 52 

Parliament the Inquest of the Nation 54 

Private Bill Legislation 55 

The House of Lords 57 

The Powers of the House of Lords 59 

The Act of 191 1 60 

The Cabinet and the Country 61 



CHAPTER III 

ENGLAND: PARTY 

Parties during the War 6s 

Parties in Modern Government 64 

Party and the Parliamentary System 64 

Party Votes in Parliament 66 



CHAPTER IV 

ENGLAND: LOCAL GOVERNMENT 

The Areas of Local Government 69 

Borough Councils 71 

The Mayor 73 

The Permanent Officials 73 

Their Position 74 

Benefits of their Influence 76 



CONTENTS VU 

CHAPTER V 

ENGLAND: THE EMPIRE 

The British Empire 77 

Proportion of Races 77 

Distribution of the European Elements 78 

Revenue 79 

Forms of Colonial Government 80 

The Self- Governing Colonies 80 

Colonial Federations 82 

The Relation to England 82 

The Crown Colonies 85 

India 86 

The Civil Service of India . . 87 

India is not a Nation 88 

The Native States 89 

Egypt 90 

Imperial Federation 90 



CHAPTER VI 

FRANCE: INSTITUTIONS 

Origin of Parliamentary Government 93 

Parliamentary Government on the Continent 97 

The French Constitution 98 

History of its Creation 99 

The Constitutional Laws 101 

Amendments 102 

The Chamber of Deputies 104 

Scrutin de Liste and Scrutin d'Arrondissement 105 

The Chamber a Tumultuous Body 107 

The Senate 108 

Its Functions no 

Its Actual Influence in 

The President of the Republic 115 

His Personal Authority 117 

The Conseil d'Etat 119 

The Ministers 120 

Their Responsibility to the Chambers 121 

Their Enormous Power 121 



viii CONTENTS 

Local Government 122 

The Prefect 124 

The General Council 125 

The Arrondissement and the Canton 127 

The Commune 128 

Paris 130 

Legislative Powers of the Executive 131 

Decrees and Ordinances 131 

Appropriations 133 

Judicial Powers of the Executive 134 

Early Royal Power in England 135 

The Judicial System in England 135 

The Administrative System 137 

The Royal Power in France 137 

The Judicial System in France 138 

The Administrative System 139 

Doctrine of the Separation of Powers 140 

The Administrative Courts 143 

The Court of Conflicts 147 

The State of Siege 148 

Effect on the Executive 149 



CHAPTER VII 

FRANCE: PARTIES 

Parties in Popular Government 151 

The Parliamentary System and Parties 152 

Many Groups in France 155 

The Lack of Political Consensus 158 

French Political Opinions Theoretical 161 

Effects of French Political Mechanism 164 

The Method of Electing Deputies 164 

The Committees in the Chambers 167 

Interpellations 172 

Jealousy and Distrust of the Ministers 178 

Results of the Condition of Parties 181 

The Cabinet a Coalition and therefore Weak 182 

Political Use of Offices 184 

Deputies and their Committees 185 

The Deputies and their Constituents 188 

Prospects of the Republic 189 



CONTENTS IX 

CHAPTER VIII 
ITALY 

The Union of Italy 197 

The Statuto 198 

The King 200 

The Ministers 201 

The Senate 202 

The Chamber of Deputies 204 

The Administrative System 208 

Contrast between Theory and Practice 210 

The Ordinance Power 211 

The Civil Service 213 

Local Government 214 

The Judicial System 216 

The Courts and the Officials 217 

Administrative Law 218 

Administrative Courts 220 

Weakness of the Judicial System 222 

The Church 223 

Church and State 224 

The Monastic Orders 226 

The Pope 227 

The Law of the Papal Guarantees 228 

Difficulty of the Question 230 

CHAPTER IX 

GERMANY: STRUCTURE OF THE EMPIRE 

Former Subdivision of Germany 233 

The Growth of Prussia 234 

The Germanic Confederation 235 

The Attempt at Union in 1848-49 236 

Bismarck 238 

The Constitutional Conflict 238 

The North German Confederation 240 

The Constitution of the Empire 242 

Nature of the Confederation 243 

The Privileges of Prussia 245 

Privileges of the Other States 248 

The Empire and the Old Confederation 249 



X CONTENTS 

The Reichstag 251 

The Committee System 253 

The Powers of the Reichstag 254 

The Right of Dissolution 255 

Interpellations 256 

The Bundesrath 257 

Character of the Bundesrath 259 

Its Internal Organization 262 

Powers of the Bundesrath 264 

Privacy of Meetings . . 267 

Actual Influence of the Bundesrath 268 

The Kaiser 269 

His Powers as Kaiser and King 270 

The Chancellor 272 

His Functions 274 

His Substitutes 275 

The Judiciary 276 

The Reichsgericht 276 

Character of the Federal System 277 



CHAPTER X 

GERMANY: THE SEVERAL STATES 

Prussia: The Constitution and the King 279 

The Ministers and the Bureaucracy 280 

The Landtag 282 

The Three-Class System of Election 283 

Prussian Local Government 286 

Bavaria 286 

Wurtemberg, Baden, and Hesse 288 

Saxony 289 

The Small Monarchies 291 

The Two Mecklenburgs 293 

Hamburg, Bremen, and Liibeck 293 

Alsace-Lorraine 295 

TheActofi9ii 297 



CONTENTS xi 

CHAPTER XI 

GERMANY: COMMENTS ON THE POLITICAL SYSTEM 

The Position of the Chancellor 299 

Why not Responsible to the Reichstag 301 

Parties in Germany 302 

Parties in the Landtags 304 

Class Strife an Obstacle to Popular Government 305 

The Growth of Discontent 307 

Democracy would Involve Organic Changes 308 



CHAPTER XII 

AUSTRIA-HUNGARY 

Austria: Provinces and Races 310 

The Constitution 312 

The Emperor 313 

The Reichsrath 313 

The Provinces 315 

The Race Question 316 

Hungary: The Races 318 

The King 320 

The Parliament 321 

The Dual Monarchy 322 

The Delegations s 2 3 

The Customs Union 325 

The Joint Ministers 325 

Bosnia and Herzegovina 327 

The Character of the Union 328 



GREATER EUROPEAN 
GOVERNMENTS 



CHAPTER I 

ENGLAND: CROWN AND CABINET 

Sources of the English Constitution 

The English constitution — speaking, of course, of its 
form, not its content — differs from those of most other 
European nations more widely in method of expression than 
in essential nature and legal effect. They have been created 
usually as a result of a movement to change fundamentally 
the political institutions of the country, and the new plan 
has naturally been embodied in a document; but since the 
Restoration England has never revised her frame of gov- 
ernment as a whole, and hence has felt no need of codifying 
it. The national political institutions are to be found in 
statutes, 1 in customs which are enforced and developed by 
the courts and form a part of the common law, and in 
customs strictly so called which have no legal validity what- 
ever and cannot be enforced at law. These last are very 
appropriately called by Professor Dicey the conventions of 
the constitution. The two chief peculiarities of the Eng- 
lish constitution are: first, that no laws are ear-marked as 
constitutional — all laws can be changed by Parliament, 
and hence it is futile to attempt to draw a sharp line between 
those laws which do and those which do not form a part of 
the constitution; second, the large part played by cus- 
tomary rules, which are carefully followed, but which are 

1 Boutmy in his Etudes de droit constitutionel (ist ed., p. 9) adds treaties or 
quasi- treaties (the Acts of Union), and solemn agreements such as the Bill 
of Rights. But all these are in legal effect simply statutes. 



4 GREATER EUROPEAN GOVERNMENTS 

entirely devoid of legal sanction. Customs or conventions 
of this kind exist, and in the nature of things must to some 
extent exist, under all governments. In the United States 
where they might, perhaps, be least expected, they have 
transformed the presidential electors into a mere machine 
for registering the popular vote in the several states, and 
this is only the most striking of the instances that might be 
cited. 1 England is peculiar, not because it has such con- 
ventions, but because they are more abundant and all- 
pervasive than elsewhere. The most familiar of them is, of 
course, the rule that the king must act on the advice of his 
ministers, while they must resign or dissolve Parliament 
when they lose the confidence of the majority in the House 
of Commons. It is impossible, however, to make a precise 
list of the conventions of the constitution, for they are con- 
stantly changing by a natural process of growth and decay; 
and while some of them are universally accepted, others are 
in a state of uncertainty. 

The Relation of Law and Custom 

The relation between law and custom in the English gov- 
ernment is characteristic. From the very fact that the law 
consists of those rules which are enforced by the courts, it 
follows that the law — including, of course, both the stat- 
utes and the common law — is perfectly distinct from the 
conventions of the constitution; is quite independent of 
them, and is rigidly enforced. The conventions do not ab- 
rogate or obliterate legal rights and privileges, but merely 
determine how they shall be exercised. The legal forms are 
scrupulously observed, and are as requisite for the validity 
of an act as if custom had not affected their use. The 
power of the crown, for example, to refuse its consent to 
1 Bryce, American Commonwealth, ch. xxxiv. 



ENGLAND: CROWN AND CABINET 5 

bills passed by the two houses of Parliament is obsolete, 
yet the right remains legally unimpaired. The royal assent 
is given to such bills with as much solemnity as if it were 
still discretionary, and without that formality a statute 
would have no validity whatever. The most notable ex- 
ample of this is the way in which the actual exercise of the 
royal power has been transferred from the king to Parlia- 
ment. The House of Commons gradually drew his authority 
under its control ; but it did so without seriously curtailing 
the legal powers of the crown, and thus the king legally 
enjoys most of the attributes that belonged to his predeces- 
sors, although the exercise of his functions has passed into 
other hands. If the personal authority of the monarch has 
become a shadow of its former massiveness, the government 
is still conducted in his name, and largely by means of the 
legal rights attached to his office. With a study of the 
crown, therefore, a description of English government most 
fittingly begins. 

Powers of the Crown 

The authority of the English monarch may be considered 
from different points of view, which must be taken up in 
succession; the first question being what power is legally 
vested in the crown; the second, how much of that power 
can practically be exercised at all; the third, how far the 
power of the crown actually is, or may be, used in accord- 
ance with the personal wishes of the king, and how far its 
exercise is really directed by his ministers; the fourth, how 
far their action is in turn controlled by Parliament. 

Legislative Power 

All legislative power is vested in the King in Parliament; 
that is, in the king acting in concert with the two houses. 
Legally, every act requires the royal assent, and, indeed, the 



6 GREATER EUROPEAN GOVERNMENTS 

houses can transact business only during the pleasure of the 
crown, which summons and prorogues them, and can at any 
moment dissolve the House of Commons. But it is impor- 
tant to note that by itself, and apart from Parliament, the 
crown has to-day, within the United Kingdom, no inherent 
legislative power whatever. This was not always true, for 
legislation has at times been enacted by the crown alone 
in the form of ordinances or proclamations; but the prac- 
tice may be said to have received its death-blow from the 
famous opinion of Lord Coke, " that the King by his procla- 
mation cannot create any offence which was not an offence 
before, for then he may alter the law of the land." l The 
English crown has, therefore, no inherent power to make 
ordinances for completing the laws, such as is possessed by 
the chief magistrate in France and other continental states. 
This does not mean that it cannot make regulations for the 
conduct of affairs by its own servants, by Orders in Council, 
for example, establishing regulations for the management 
of the army, or prescribing examinations for entrance to the 
civil service. These are merely rules such as any private 
employer might make in his own business, and differ en- 
tirely in their nature from ordinances which have the force 
of law, and are binding quite apart from any contract of 
employment. 

Power to make ordinances which have the force of law 
and are binding on the whole community is, however, fre- 
quently given to the crown 2 by statute, notably in matters 
affecting public health, education, etc., and the practice is 
constantly becoming more and more extensive, until at pres- 
ent the rules made in pursuance of such powers — known 
as " statutory orders " — are published every year in a 

1 Coke's Reports, xii. 76. 

2 Or more strictly to the Crown in Council. 



ENGLAND: CROWN AND CABINET J 

volume similar in form to that containing the statutes. 
Some of these orders must be submitted to Parliament, but 
go into effect unless within a certain time an address to the 
contrary is passed by one of the houses, while others take 
effect at once, or after a fixed period, and are laid upon the 
tables of the houses in order to give formal notice of their 
adoption. 

Executive Power 

The crown is at the head of the executive branch of the 
central government, and carries out the laws, so far as 
their execution requires the intervention of any national 
public authority. In fact all national executive power, 
whether regulated by statute, or forming strictly a part of 
the prerogative, that is the ancient inherent royal authority, 
is exercised in the name of the crown, and by its authority, 
except when directly conferred by statute upon some officer 
of the crown, and in this case, as we shall see, it is exercised 
by that officer as a servant of the crown, and under its 
direction and control. Legally some of the executive pow- 
ers are indeed vested in the Crown in Council — that is, in 
the king acting with his Privy Council — but as the Coun- 
cil has no independent authority, and consists, for prac- 
tical purposes, of the principal ministers appointed by the 
crown, even these powers may be said to reside in the crown 
alone. 

All national public officers, except some of the officials of 
the houses of Parliament, and a few hereditary dignitaries 
whose duties are purely ceremonial, 1 are appointed directly 
by the crown or by the high state officials whom it has 
itself appointed; and the crown has also the right to remove 
them, barring a small number whose tenure is during good 

1 Such as the hereditary Earl Marshal and Grand Falconer. 



8 GREATER EUROPEAN GOVERNMENTS 

behavior. Of these last by far the most important are 
the judges, the members of the Council of India, and the 
Controller and Auditor General, no one of whom has any 
direct part in the executive government of the kingdom. 1 
Now the right to appoint and remove involves the power 
to control; and, therefore, it may be said in general that 
the whole executive machinery of the central government 
of England is under the direction of the crown. 

The crown furthermore authorizes under the sign manual 
the expenditure of public money in accordance with the 
appropriations made by Parliament, and then expends the 
money. It can grant charters of incorporation, with powers 
not inconsistent with the law of the land, so far as the right 
to do so has not been limited by statute. The crown grants 
all pardons, creates all peers, and confers all titles and 
honors. As head of the Established Church of England 
it summons Convocation with a license to transact business 
specified in advance. It virtually appoints the archbishops, 
bishops and most of the deans and canons, and has in its 
gift many rectorships and other livings. As head of the 
army and navy it raises and controls the armed forces of 
the nation, and makes regulations for their government, 
subject, of course, to the statutes and to the passage of the 
Annual Army Act. It represents the empire in all ex- 
ternal relations, and in all dealings with foreign powers. 
It has power to declare war, make peace, and conclude 
treaties, save that, without the sanction of Parliament, a 
treaty cannot impose a charge upon the people, or change 
the law of the land, and it is doubtful how far without 

1 On the power of removal from an office held during good behavior, and 
on the effect of the provision that the three classes of officers mentioned 
above may be removed upon the address of both houses of Parliament, see 
Anson, Law and Custom of the Constitution, ii. 213-215. The references to 
Anson are to the 3d ed. of vol. i. (1897); the 2d ed. of vol. ii. (1896). 



ENGLAND: CROWN AND CABINET 9 

that sanction private rights can be sacrificed or territory 
ceded. 1 

Just as Parliament has often conferred legislative au- 
thority upon the crown, so it has conferred executive power 
in addition to that possessed by virtue of the prerogative. 
Statutes of this kind have become very common during the 
last half century in relation to such matters as local govern- 
ment, public health, pauperism, housing of the working- 
classes, education, tramways, electric lighting and a host of 
other things. Even without an express grant of authority, 
supervisory powers have often been conferred upon the 
crown by means of appropriations for local purposes which 
can be applied by the government at its discretion, and 
hence in accordance with such regulations as it chooses to 
prescribe. This has been true, for example, of the subsidies 
in aid of the local police, and of education. By such methods 
the local authorities, and especially the smaller ones, have 
been brought under the tutelage of the crown to an extent 
quite unknown in the past. 

Wide Extent of the Royal Power 

All told, the executive authority of the crown is, in the 
eye of the law, very wide. " It would very much surprise 
people," as Bagehot remarked in his incisive way, " if they 
were only told how many things the Queen could do without 
consulting Parliament. . . . Not to mention other things, 
she could disband the army (by law she cannot engage 
more than a certain number of men, but she is not obliged 
to engage any men) ; she could dismiss all the officers, from 
the General Commanding-in-Chief downwards; she could 

1 Cf. Anson, Law and Custom, ii. 297-299; Dicey, Law of the Constitu- 
tion, p. 393. Heligoland was ceded to Germany by treaty in 1890, subject 
to the assent of Parliament, which was given by 53-54 Vic, c. 32. 



IO GREATER EUROPEAN GOVERNMENTS 

dismiss all the sailors too; she could sell off all our ships 
of war and all our naval stores; she could make a peace by 
the sacrifice of Cornwall, and begin a war for the conquest 
of Brittany. She could make every citizen in the United 
Kingdom, male or female, a peer; she could make every 
parish in the United Kingdom a ' university ' ; she could 
dismiss most of the civil servants; she could pardon all 
offenders. In a word, the Queen could by prerogative up- 
set all the action of civil government within the govern- 
ment." x We might add that the crown could appoint 
bishops, and in many places clergymen, whose doctrines 
were repulsive to their flocks; could cause every dog to be 
muzzled, every pauper to eat leeks, every child in the pub- 
lic elementary schools to study Welsh; and could make all 
local improvements, such as tramways and electric light, 
well-nigh impossible. 

Powers of the Crown Exercised by Ministers 

Since the accession of the House of Hanover the new 
powers conferred upon the crown by statute have probably 
more than made up for the loss to the prerogative of powers 
which have either been restricted by the same process or 
become obsolete by disuse. By far the greater part of the 
prerogative, as it existed at that time, has remained legally 
vested in the crown, and can be exercised to-day; but it 
is no longer used in accordance with the personal wishes of 
the sovereign. By a gradual process his authority has come 
more and more under the control of his ministers, until it 
is now almost entirely in the hands of the cabinet, which is 
responsible to Parliament and through Parliament to the 
nation. The cabinet is to-day the mainspring of the whole 
political system, and the clearest method of explaining the 
1 English Constitution, 2d ed. (Amer.), Introd., p. 31. 



ENGLAND: CROWN AND CABINET II 

relations of the different branches of the government to each 
other is to describe in succession their relations with the 
cabinet. 

The King can Do no Wrong 

The doctrine that " the King can do no wrong " had its 
beginnings as far back as the infancy of Henry III, and by 
degrees it grew until it became a cardinal principle of the 
constitution. Legally it means that he cannot be adjudged 
guilty of wrong-doing, and hence that no proceedings can 
be brought against him. He cannot be prosecuted crimi- 
nally, or, without his own consent, sued civilly in tort or in 
contract in any court in the land. 1 But clearly if the gov- 
ernment is to be one of law, if public officers like private 
citizens are to be subject to the courts, if the people are to 
be protected from arbitrary power, the servant who acts on 
behalf of the crown must be held responsible for illegal 
conduct from the consequences of which the king himself 
is free. Hence the principle arose that the king's command 
is no excuse for a wrongful act, and this is a firmly estab- 
lished maxim of the Common Law in both civil and crimi- 
nal proceedings. 2 To prevent royal violations of the law, 

1 If a person has a claim against the crown for breach of contract, or 
because his property is in its possession, he may bring a Petition of Right, 
and the crown on the advice of the Home Secretary will order the petition 
indorsed " Let right be done," when the case proceeds like an ordinary suit. 

2 Anson, ii. 4, 5, 42, 43, 278, 279, 476-480. But a servant of the crown 
is not liable on its contracts, for he has made no contract personally, and 
he cannot be compelled to carry out the contracts of the crown. Gidley v. 
Lord Palmerston, 3 B. & B., 284. The rule that the sovereign cannot be 
sued has been held to prevent a possessory action against a person wrong- 
fully in the possession of land as agent of the crown : Doe d. Legh. v. Roe, 
8 M. & W., 579. It would seem that in such a case the courts might have 
held that as the king could do no wrong, the wrongful act, and consequently 
the possession, was not his; in other words, that the agency could not be 
set up as a defense to the wrongful act. Compare United States v. Lee, 106 
U. S., 196, where land had been illegally seized by the government of the 
United States. 



12 GREATER EUROPEAN GOVERNMENTS 

however, it is not enough to hold liable a servant who exe- 
cutes unlawful orders, if the master still has power to commit 
offenses directly. A further step must be taken by restrain- 
ing the crown from acting without the mediation of a 
servant who can be made accountable ; and for this reason 
Edward IV was informed that he could not make an arrest 
in person. 1 But, as the kings and queens are not likely to 
be tempted into personal assaults and trespasses, the prin- 
ciple that they can act only through agents has had little 
importance from the point of view of their liability at law, 
although it is a matter of vital consequence in relation to 
their political responsibility. 

The doctrine that the king can do no wrong applies not 
only to legal offenses, but also to political errors. The 
principle developed slowly, as a part of the long movement 
that has brought the royal authority under the control of 
public opinion; not that the process was altogether con- 
scious, or the steps deliberately planned, but taking con- 
stitutional history as a whole, we can see that it tended to 
a result, and in speaking of this it is natural to use terms 
implying an intent which the actors did not really possess. 
To keep the crown from actual violations of law was not 
always easy, but it was far more difficult to prevent it from 
using its undoubted prerogatives to carry out an unpopular 
policy. Parliament could do something in a fitful and in- 
termittent way by refusing supplies or insisting upon the 
redress of particular grievances, but that alone was not 
enough to secure harmony between the crown and the other 
political forces of the day. There could, in the nature of 

1 Coke, Inst. (4th ed.), ii. 186-187. " Hussey Chief Justice reported, that 
Sir John Markham said to King E. I. that the King could not arrest any 
man for suspition of Treason, or Felony, as any of his Subjects might, be- 
cause if the King did wrong, the party could not have his Action." E. I. is 
a mistake for E. IV. 



ENGLAND: CROWN AND CABINET 1 3 

things, be no appropriate penalty for royal misgovernment. 
In the Middle Ages, indeed, a bad king or a weak king might 
lose his throne or even his life; but in more settled times 
such things could not take place without a violent convul- 
sion of the whole realm — a truth only too well illustrated 
by the events of the seventeenth century. An orderly gov- 
ernment cannot be founded on the basis of personal rule 
tempered by revolution. Either the royal power must be 
exercised at the personal will of the monarch, or else other 
persons who can be made accountable must take part in his 
acts of state. 

The Nature of Modern Responsibility 

The effort to fasten upon a particular person the actual 
responsibility for each public act of the crown by compel- 
ling some officer to put his approval of it on record, has 
been superseded by the general principle that the respon- 
sibility must always be imputed to a minister. Although 
ignorant of the matter at the time it occurred, he becomes 
answerable if he retains his post after it comes to his knowl- 
edge ; and even though not in office when the act was done, 
yet if he is appointed in consequence of it, he assumes with 
the office the responsibility for the act. This happened to 
Sir Robert Peel in 1834. Believing, as every one at that 
time did believe, that the king had arbitrarily dismissed 
Lord Melbourne's cabinet, he said, " I should by my ac- 
ceptance of the office of First Minister become technically, 
if not morally, responsible for the dissolution of the preced- 
ing government, although I had not the remotest concern 
in it." 1 The rule is so universal in its operation " that there 
is not a moment in the king's life, from his accession to his 
demise, during which there is not some one responsible to 
1 Mahon and Cardwell, Memoirs by Sir Robert Peel, ii. 31. 



14 GREATER EUROPEAN GOVERNMENTS 

Parliament for his public conduct." 1 A minister is now 
politically responsible for everything that occurs in his 
department, whether countersignature or seal is affixed by 
him or not; and all the ministers are jointly responsible 
for every highly important political act. A minister whose 
policy is condemned by Parliament is no longer punished, 
he resigns; and if the affair involves more than his personal 
conduct or competence, if it is of such moment that it ought 
to have engaged the attention of the cabinet, his colleagues 
resign with him. Thus punitive responsibility has been 
replaced by political responsibility, and separate has been 
enlarged to joint responsibility. 

The King must Follow the Advice of Ministers 

The ministers, being responsible to Parliament for all the 
acts of the crown, are obliged to refrain from things that 
they cannot justify, and to insist upon actions which they 
regard as necessary. In short, the cabinet must carry out 
its own policy; and to that policy the crown must submit. 
The king may, of course, be able to persuade his ministers 
to abandon a policy of which he does not approve, but if he 
cannot persuade them, and, backed by a majority in Parlia- 
ment, they insist upon their views, he must yield. It is 
commonly said that he must give his ministers his confi- 
dence, but it would be more accurate to say that he must 
follow their advice. With the progress of the parliamentary 
system this custom has grown more and more settled, the 
ministers assuming greater control, and the crown yield- 
ing more readily, not necessarily from any dread of the 
consequences, but from the force of habit. 

1 Todd, Pari. Government in England, 2d ed., i. 266. 



ENGLAND: CROWN AND CABINET 15 

For What Acts Ministers are Responsible 

There is one matter in which the crown cannot really 
be bound by the advice of ministers, and that is in the selec- 
tion of a premier. It would be obviously improper, not to 
say absurd, that the king in the selection of a new prime 
minister should be obliged to follow the opinion of the 
one who has just resigned in consequence of a change of 
party in the House of Commons. There is usually one 
recognized leader of the Opposition, and when that is the 
case the crown must entrust the formation of the new min- 
istry to him. This was illustrated in 1880. Mr. Gladstone 
had, some years before, retired from the leadership of the 
Liberals in Parliament, and the Queen, after their success 
at the general election, sent for Lord Hartington, then 
leading them in the House of Commons; but she found 
that Mr. Gladstone, who had really led the party in the 
country to victory, was the only possible head of a Liberal 
government. 1 

If the party that has obtained a majority in Parliament 
has no recognized leader, the crown may entrust the forma- 
tion of a ministry to any one of its chief men who is willing 
to undertake the task; or if, as is sometimes the case, the 
parties have become more or less disintegrated, so that only 
a coalition ministry can be formed, the crown can send for 
the head of any one of the various groups. Not to speak 
of earlier days, when the king had more freedom than at 
present in the formation of his cabinets, it happened several 
times in the reign of Queen Victoria that the question who 
should be prime minister was determined by her personal 
choice. Such opportunities, however, are likely to be less 
common in future, for it is altogether probable that a party 

1 Cf. Morley, Life of Gladstone, book ii, ch. vii. 



1 6 GREATER EUROPEAN GOVERNMENTS 

will prefer to choose its own leader rather than to leave the 
selection to the crown. 

At the present day all persons whose offices are considered 
political are appointed in accordance with the advice of the 
Prime Minister. This does not mean that the sovereign 
may not urge his own views, perhaps with success, and on 
one occasion, at least, the Queen secured, it is said, a place 
in the cabinet for a former minister whom the incoming 
premier had either forgotten or meant to leave out. It 
does mean, however, that if the minister insists upon his 
advice it must be accepted. In short, the ministers direct 
the action of the crown in all matters relating to the gov- 
ernment. The king's speech on the opening of Parliament 
is, of course, written by them ; and they prepare any answers 
to addresses that may have a political character. All official 
letters and reports to the king, and all communications 
from him, must pass through the hands of one of their 
number. 

Since the king can do no wrong, he can do neither right 
nor wrong. He must not be praised or blamed for political 
acts; nor must his ministers make public the fact that any 
decision on a matter of state was actually made by him. 1 
His name must not be brought into political controversy 
in any way, or his personal wishes referred to in argument, 
either within or without Parliament. 2 

1 Disraeli's opponents were right for criticizing him for letting it be known 
that it was the Queen who had decided whether to accept his resignation 
or to dissolve in 1868: Hans. 3d Ser., cxci. 1705, 1724, 1742, 1788, 1794, 
1800, 1806, 181 1. There was no objection to allowing her to decide if he 
pleased — that is, he might accept her opinion as his own — but he ought 
to have assumed in public the sole responsibility for the decision. 

2 In 1876 Mr. Lowe in a public speech expressed his belief that the Queen 
had urged previous ministers in vain to procure for her the title of Empress 
of India. The matter was brought to the attention of the House of Com- 
mons, and he was forced to make an apology, which was somewhat abject, 



ENGLAND: CROWN AND CABINET 1 7 

Utility of Monarchy 

According to the earlier theory of the constitution the 
ministers were the counsellors of the king. It was for them 
to advise and for him to decide. Now the parts are almost 
reversed and the sovereign is not usually consulted about 
matters of domestic legislation and policy until the opinion 
of the cabinet has taken shape. For although he is informed 
in general terms of what is done at cabinet meetings, and 
sometimes discusses with a minister the proposed measures 
relating to his department, yet a matter is commonly talked 
over and agreed upon by the ministers before it is submitted 
to him for approval. In this way " the sovereign is brought 
into contact only with the net results of previous inquiry 
and deliberation," 1 and the views of the cabinet are " laid 
before " him " and before Parliament, as if they were the 
views of one man." 2 To-day the social and ceremonial 
functions of the crown attract quite as much interest as 
ever; but as a political organ it has receded into the back- 
ground, and occupies public attention far less than it did 
formerly, while the spread of democracy has made the 
masses more and more familiar with the actual forces in 
public life. 

On the other hand, the government of England is incon- 
ceivable without the parliamentary system, and no one 
has yet devised a method of working that system without 
a central figure, powerless, no doubt, but beyond the reach 
of party strife. Some countries that had no kings have felt 
constrained to adopt monarchs who might hold a sceptre 
which they could not wield; and one nation, disliking kings, 

the Queen through the Prime Minister having denied the truth of his state- 
ment. Hans. 3d Ser. 3 ccxxviii. 2023 et seq.; and ccxxix. 52-53. 

1 Gladstone, Gleanings of Past Years, i. 85. 

2 Morley, Life of Walpole, p. 155. 



1 8 GREATER EUROPEAN GOVERNMENTS 

has been forced to set up a president with most of the attri- 
butes of royalty except the title. If the English crown is 
no longer the motive power of the ship of state, it is the 
spar on which the sail is bent, and as such it is not only a 
useful but an essential part of the vessel. 

To many countries the visible symbol of the state is the 
flag; but curiously enough there is no British national flag. 
Different banners are used for different purposes; the king 
uses the Royal Standard; ships of war carry at the peak 
the White Ensign; naval reserve vessels fly the Blue En- 
sign, and merchantmen the Red Ensign; while the troops 
march, and Parliament meets, under the Union Jack; and 
all of these are freely displayed on occasions of public re- 
joicing. Each of the self-governing colonies has, moreover, 
its own flag, which consists of the Union Jack with some 
distinctive emblem upon it. The crown is thus the only 
visible symbol of union in the Empire, and this has un- 
doubtedly had no inconsiderable effect upon the reverence 
felt for the throne. 

Whatever the utility of the crown may be at the present 
time, there is no doubt of its universal popularity. A gen- 
eration ago, when the Queen, by her seclusion after the death 
of Prince Albert, neglected the social functions of the court, 
a number of people began to have serious doubts on the 
subject. This was while republican ideals of the earlier 
type still prevailed, and before men had learned that a re- 
public is essentially a form of government, and not neces- 
sarily either better or worse than other forms. The small 
republican group in England thought the monarchy useless 
and expensive; but people have now learned that republics 
are not economical, and that the real cost of maintaining 
the throne is relatively small. 1 So that while the benefits 

1 Hans. 4th Ser., xciv. 1500. The Civil List of Edward VII was fixed 
at his accession at £543,000, to which must be added about £60,000 of 



ENGLAND: CROWN AND CABINET 1 9 

derived from the crown may not be estimated more highly, 
or admitted more universally than they were at that time, 
the objections to the monarchy have almost entirely dis- 
appeared, and there is no republican sentiment left to-day 
either in Parliament or the country. 

Nature of the Cabinet 

The conventions of the constitution have limited and 
adjusted the exercise of all legal powers by the regular 
organs of the state in such a way as to vest the main au- 
thority of the central government — the driving and the 
steering force — in the hands of a body entirely unknown 
to the law. The members of the cabinet are almost always 
the holders of public offices created by law; but their pos- 
session of those offices by no means determines their activity 
as members of the cabinet. They have, indeed, two func- 
tions. Individually, as officials, they do the executive work 
of the state and administer its departments; collectively 
they direct the general policy of the government. 

The essential function of the cabinet is to coordinate and 
guide the political action of the different branches of the 
government, and thus create a consistent policy. Bagehot 
called it a hyphen that joins, a buckle that fastens, the ex- 
ecutive and legislative together; and in another place he 
speaks of it as a committee of Parliament chosen to rule 
the nation. More strictly, it is a committee of the party 
that has a majority in the House of Commons. The minor- 
ity is not represented upon it; and in this it differs from 
every other parliamentary committee. The distinction is 
so obvious to us to-day, we are so accustomed to govern- 

revenues from the Duchy of Lancaster, and also the revenues from the 
Duchy of Cornwall which go to the heir apparent as Duke of Cornwall. 
Rep. Com. on Civil List, Com. Papers, 1901, v. 607. 



20 GREATER EUROPEAN GOVERNMENTS 

merit by party wherever popular institutions prevail, that 
we are apt to forget the importance of the fact. 

The cabinet is selected by the party, not directly, but 
indirectly, yet for that very reason represents it the better. 
Direct election is apt to mean strife within the party, re- 
sulting in a choice that represents the views of one section 
as opposed to those of another, or else in a compromise 
on colorless persons; while the existing indirect selection 
results practically in taking the men, and all the men, who 
have forced themselves into the front rank of the party and 
acquired influence in Parliament. The minority is not rep- 
resented in the cabinet; but the whole of the majority is 
now habitually represented, all the more prominent leaders 
from every section of the party being admitted. In its 
essence, therefore, the cabinet is an informal but permanent 
caucus of the parliamentary chiefs of the party in power — 
and it must be remembered that the chiefs of the party are 
all in Parliament. In fact the continental practice whereby 
ministers are allowed to address the legislature, whether 
they have seats in it or not, being unknown in England, 
every member of the cabinet, and indeed of the ministry, 
must have a seat in one or other House of Parliament. 

The Need of Unity and Secrecy in the Cabinet 

Parliamentary government in its present highly developed 
form requires a very strong cohesion among the members 
of the majority in the House of Commons, and, therefore, 
absolute harmony, or the appearance of harmony, among 
their leaders. Party cohesion, both in the House and in the 
cabinet, is, indeed, an essential feature of the parliamentary 
system; 1 but since men, however united on general princi- 

1 This is true in normal times; but early in this war a cabinet of both 
parties was formed, which for the time suspends the ordinary working of the 
parliamentary system. 



ENGLAND: CROWN AND CABINET 21 

pies, do not by nature think alike in all things, differences 
of opinion must constantly arise within the cabinet itself. 1 
Sometimes they are pushed so far that they can be settled 
only by a division or vote, but this is exceptional, for the 
object of the members is, if possible, to agree, not to obtain 
a majority of voices and override the rest. 2 The work of 
every cabinet must, therefore, involve a series of compro- 
mises and concessions, the more so because the members 
represent the varying shades of opinion comprised in the 
party in power. 

Men engaged in a common cause who come together for 
the purpose of reaching an agreement usually succeed, pro- 
vided their differences of opinion are not made public. But 
without secrecy harmony of views is well-nigh unattainable ; 
for if the contradictory opinions held by members of the 
cabinet were once made public it would be impossible after- 
wards to make the concessions necessary to a compromise 
without the loss of public reputation for consistency and 
force of character. Moreover, a knowledge of the initial 
divergence of views among the ministers would vastly in- 
crease the difficulty of rallying the whole party in support 
of the policy finally adopted, and would offer vulnerable 
points to the attacks of the Opposition. Secrecy is, there- 
fore, an essential part of the parliamentary system. In fact, 
by a well-recognized custom, it is highly improper to refer 
in Parliament, or elsewhere, to what has been said or done 
at meetings of the cabinet, although reticence must at times 
place certain members in a very uncomfortable position. 

1 One cannot read Mr. Morley's Life of Gladstone without being struck 
by the frequency of such differences. One feels that in his twenty-five years 
of life in the cabinet Gladstone must have expended almost as much effort 
in making his views prevail with his colleagues as in forcing them through 
Parliament. 

2 In Gladstone's cabinet of 1880-1885 the practice of counting votes was 
complained of as an innovation. Morley, Life of Gladstone, iii. 5. 



22 GREATER EUROPEAN GOVERNMENTS 

The Prime Minister 

At the meetings of the cabinet the Prime Minister as 
chairman is no doubt merely primus inter pares. His 
opinion carries peculiar weight with his colleagues mainly 
by the force it derives from his character, ability, experi- 
ence and reputation; but apart from cabinet meetings he 
has an authority that is real, though not always the same 
or easy to define. 

Matters of exceptional importance ought to be brought 
to his attention before they are discussed in the cabinet; 
and any differences that may arise between any two min- 
isters, or the departments over which they preside, should 
be submitted to him for decision, subject, of course, to a 
possible appeal to the cabinet. He is supposed to exercise 
a general supervision over all the departments. Nothing of 
moment that relates to the general policy of the govern- 
ment, or that may affect seriously the efficiency of the serv- 
ice, ought to be transacted without his advice. 

Unless the Prime Minister is a peer he represents the cabi- 
net as a whole in the House of Commons, making there any 
statements of a general nature. The other ministers usually 
speak only about matters in which they are directly con- 
cerned. But the Prime Minister must keep a careful watch 
on the progress of all government measures; and he is ex- 
pected to speak not only on all general questions, but on 
all the most important government bills. 

The Cabinet and the Ministry 

The ministry is composed of an inner part that formulates 
the policy of the government, and an outer part that fol- 
lows the lines laid down; the inner part, or cabinet, contain- 
ing the more prominent party leaders, who are also holders 



ENGLAND: CROWN AND CABINET 2$ 

of the principal offices of state, while the outer part consists 
of the heads of the less important departments, the parlia- 
mentary undersecretaries, the whips and the officers of the 
royal household. All of these persons are strictly in the 
ministry, and resign with the cabinet; but the officers of 
the household have, as such, no political functions, and 
do not concern us here. By far the greater part of the 
ministers outside of the cabinet are the parliamentary 
undersecretaries, who have two distinct sets of duties, 
one administrative and the other parliamentary. Their 
administrative duties vary very largely, mainly in accord- 
ance with personal considerations. Some of them are really 
active in their departments, doing work which might fall 
upon the parliamentary chief, or upon the permanent 
undersecretary, while others have little or no administra- 
tive business; but in any case the real object of their 
existence is to be found on the parliamentary side. 1 

The Executive Departments 

Although in origin and legal organization the departments 
of state are very unlike, yet the growth of custom, and the 
exigencies of parliamentary life, have, for practical purposes, 
forced almost all of them into something very near one 
common type. Whatever the legal form of the authority 
at their head, the actual control is now in nearly every case 
in the hands of a single responsible minister. Sometimes he 
is called a secretary of state; sometimes the chairman of a 
board; sometimes by a peculiar title, like the Chancellor of 
the Exchequer, who is the minister of finance, or the First 
Lord of the Admiralty, who is the minister of the navy. 

1 It may be noted that the chief secretary of the Lord Lieutenant of Ire- 
land is not a parliamentary undersecretary, but the real head of the Irish 
Office, unless the Viceroy is in the cabinet. 



24 GREATER EUROPEAN GOVERNMENTS 

He is usually assisted by one or more parliamentary subor- 
dinates, and is always supported by a corps of permanent 
non-political officials, who carry on the work of the office. 

The Permanent Civil Service 

The history of the permanent civil service would be one 
of the most instructive chapters in the long story of English 
constitutional development, but unfortunately it has never 
been written. The nation has been saved from a bureau- 
cracy, such as prevails over the greater part of Europe, on 
the one hand, and from the American spoils system on the 
other, by the sharp distinction between political and non- 
political officials. The former are trained in Parliament, not 
in administrative routine. They direct the general policy 
of the government, or at least they have the power to direct 
it, are entirely responsible for it, and go out of office with 
the cabinet; while the non-political officials remain at their 
posts without regard to party changes, are thoroughly fa- 
miliar with the whole field of administration, and carry out 
in detail the policy adopted by the ministers of the day. 

If it were not for three or four ministers, such as the Irish 
Law Officers, who are expected to get themselves elected to 
Parliament if they can, but whose tenure of their positions 
does not depend upon their doing so, one might say that the 
public service is divided into political officers who must sit 
in Parliament, and non-political officers who must not. The 
keeping out of politics, and the permanence of tenure must, 
in the long run, go together; for it is manifest that office 
can be held regardless of party changes only in case the 
holders do not take an active part in bringing those changes 
to pass; and if, on the other hand, they are doomed to lose 
their places on a defeat at the polls of the party in power, 
they will certainly do their utmost to avert such a defeat. 



ENGLAND: CROWN AND CABINET 25 

In England the abstinence and the permanence have been 
attained, and it is noteworthy that they are both secured 
by the force of opinion hardening into tradition, and not 
by the sanction of law. Although all officeholders, not 
directly connected with the conduct of elections, have now 
a legal right to vote, and are quite at liberty to do so, it is 
a well-settled principle that those who are non-political — 
that is, all who are not ministers — must not be active in 
party politics. They must not, for example, work in a 
party organization, serve on the committee of a candidate 
for Parliament, canvass in his interest, or make speeches on 
general politics. All this is so thoroughly recognized that 
one rarely hears complaints of irregular conduct, or even of 
actions of a doubtful propriety. In 1874, when the acts 
imposing penalties upon their taking an active part at elec- 
tions were repealed, 1 it was perfectly well understood that 
they would not be permitted to go into party politics, and 
that the government was entitled to make regulations on 
the subject. 2 Those regulations are still in force, 3 and it is 
only by maintaining them that the civil servants can con- 
tinue to enjoy both permanence of tenure and the right to 
vote. 

Permanence of tenure in the English civil service, like the 
abstinence from party politics, is secured by custom, not 
by law, for the officials with whom we are concerned here 
are appointed during pleasure, and can legally be dismissed 

1 Electioneering by civil servants has been the subject of legislation. An 
Act of 1 710 (9 Anne, c. 10, § 44) rendered liable to fine and dismissal any 
post-office official who " shall, by Word, Message, or Writing, or in any other 
Manner whatsoever, endeavour to persuade any Elector to give or dissuade 
any Elector from giving his Vote for the Choice of any Person ... to serve 
in Parliament." Cf. Eaton, Civil Service in Great Britain, p. 85. 

2 In fact in 1874 the bill was amended so as to make this clear. Hans. 
3d Ser., ccxix. 797-800. 

3 Cf. Hans. 4th Ser., xvi. 1218; liii. 1131. 



26 GREATER EUROPEAN GOVERNMENTS 

at any time for any cause. Now, although the removal, 
for partisan motives, of officials who would be classed to-day 
as permanent and non-political, has not been altogether un- 
known in England, yet it was never a general practice. 

The habit of discharging these officials on party grounds 
never having become established, it was not unnatural that 
with the growth of the parliamentary system the line be- 
tween the changing political chiefs and their permanent 
subordinates should be more and more clearly marked, and 
this process has gone on until at the present day the dis- 
missal of the latter on political grounds is practically un- 
heard of, either in national or local administration. 

Appointment by Competitive Examination 

As early as 1834, examinations for appointment to the 
civil service began to be used, and these were gradually 
extended and assumed a competitive form. An order in 
Council of June 4, 1870, 1 which is still the basis of the sys- 
tem of examinations, provides that (except for offices to 
which the holder is appointed directly by the crown, 
situations filled by promotion, and positions requiring pro- 
fessional or other peculiar qualifications, where the ex- 
aminations may be wholly or partly dispensed with) no 
person shall be employed in any department of the civil 
service until he has been tested by the Civil Service Com- 
missioners, and reported by them qualified to be admitted 
on probation. 2 It provides further that the appointments 
named in Schedule A, annexed to the Order, must be made 
by open competitive examination; and this list has been 
extended from time to time until it covers the greater part 

1 Com. Papers, 1870, xix. 1, p. vii. 

2 §§ 2, 7, and Schedule B. Cf. Orders in Council, Aug. 19, 1871, § 1; Sept. 
15, 1902. 



ENGLAND: CROWN AND CABINET 2J 

of the positions where the work does not require peculiar 
qualifications, or is not of a confidential nature, or of a dis- 
tinctly inferior or manual character like that of attendants, 
messengers, workmen, etc. 

Lay Chief and Expert Subordinate 

Leslie Stephen, I think, remarks somewhere that the 
characteristic feature of the English system of government 
is a justice of the peace who is a gentleman, with a clerk 
who knows the law; and certainly the relationship between 
the titular holder of a public post, enjoying the honors, and 
assuming the responsibility, of office, and a subordinate, 
who, without attracting attention, supplies the technical 
knowledge and largely directs the conduct of his chief, 
extends throughout the English government from the 
Treasury Bench to the borough council. 

The Relation between Them 

The theoretical relation between the political chief and 
his permanent subordinate is a simple one. The political 
chief furnishes the lay element in the concern. His function 
is to bring the administration into harmony with the general 
sense of the community and especially of Parliament. He 
must keep it in accord with the views of the majority in 
the House of Commons, and conversely he must defend it 
when criticized, and protect it against injury by any ill- 
considered action of the House. He is also a critic charged 
with the duty of rooting out old abuses, correcting the 
tendency to red tape and routine, and preventing the depart- 
ment from going to sleep or falling into ruts; and, being at 
the head, it is for him, after weighing the opinion of the ex- 
perts, to decide upon the general policy to be pursued. The 
permanent officials, on the other hand, are to give their ad- 



28 GREATER EUROPEAN GOVERNMENTS 

vice upon the questions that arise, so as to enable the chief 
to reach a wise conclusion and keep him from falling into 
mistakes. When he has made his decision they are to carry 
it out; and they must keep the department running by 
doing the routine work. In short the chief lays down the 
general policy, while his subordinates give him the benefit 
of their advice, and attend to the details. 

The smooth working of a system of this kind evidently 
depends upon the existence of mutual respect and confidence 
between the minister and the permanent undersecretary. 
The permanent undersecretary ought to feel, and in fact 
does feel, a temporary allegiance to his chief, although of a 
different political party. He gives his advice frankly until 
the chief has reached a decision, and then he carries that 
out loyally. The minister on his part seeks the advice of 
the undersecretary on all questions that arise, making al- 
lowance for bias due to preconceived political or personal 
conviction. 

A good minister must be a good administrator, but he 
must look to results, and not suppose that he knows as much 
about the technical side of the work as his permanent sub- 
ordinate. For, as Bagehot quotes Sir George Cornewall 
Lewis, "It is not the business of a Cabinet Minister to 
work his department. His business is to see that it is 
properly worked." * If he attempts to go beyond his prov- 
ince, to be dogmatic and to interfere in details, he will 
cause friction and probably come to grief. 

1 The English Constitution, ist ed., p. 240. 



CHAPTER II 

ENGLAND: PARLIAMENT 
The Reform Acts 

The story of the Reform Act of 1832 has often been told; 
how, before its passage, members were elected to the House 
of Commons by many constituencies which contained very 
few voters; how in some cases these voters were the owners 
of land in old chartered boroughs which retained their 
privileges although they had ceased altogether to be in- 
habited; and how the act swept away these abuses, together 
with many local electoral customs, and regulated the fran- 
chise on more nearly uniform principles. The conditions it 
established remained in force until 1867-68, when other 
statutes enlarged the franchise and redistributed the seats 
— a process that was repeated in 1884-85. These latter 
acts brought in a very rough approximation to equal elec- 
toral districts, and extended the franchise to almost all men 
who occupied the same premises for a year. But the quali- 
fications were cumbrous, being based upon some relation 
to land ; and including not only the owners but persons 
technically classed as occupiers, householders and lodgers. 
The provisions worked injustice in many cases, and allowed 
men to vote in a number of different constituencies at the 
same election. There had long been a demand for a revision 
of the election laws, and a loud cry for the inclusion of 
women. Finally the war made it clear that soldiers ought 
to be allowed to vote, which they could not do under laws 
that made the franchise depend upon actual occupation. 



30 GREATER EUROPEAN GOVERNMENTS 

The Act of igi8 

The ministers at this time belonged to both the great 
parties, and the reform bill they brought in was not, as is 
usual, a party measure. It was the result of compromises 
made in a conference of members from both sides of the 
House of Commons; and hence, while it introduced uni- 
versal suffrage based only upon residence, it contained also 
some provisions slightly favoring trade and education. 

The Constituencies : Boroughs and Counties 

The new act, 1 which received the royal assent on February 
6, 1918, changed not only the franchise but also the con- 
stituencies. These still preserve the old distinction between 
boroughs and counties, the considerable towns being sep- 
arate constituencies by themselves or cut into electoral 
divisions; and it may be noted that while a number of 
boroughs continue to elect two members as an undivided 
district, all the rest of the constituencies, in boroughs and 
counties, are single-member districts. The new act rear- 
ranged the constituencies afresh with a view to making 
them as nearly equal in population as possible. 2 There is 
in fact only one glaring inequality, that of Ireland, which 
retains its former number of seats, and is heavily over- 
represented pending a measure of home rule that is expected 
to change radically its representation in Parliament. The 
number of members in the House was raised by the act 
from 670 to 709, and, apart from the university members, 
486 of them are allotted to England, 35 to Wales, 71 to 
Scotland and 101 to Ireland. 

1 8 Geo. V, c. 64, and for the constituencies in Ireland, c. 65. 

2 Cf. c. 64, Schedule 9, and c. 65. 



ENGLAND: PARLIAMENT 3 1 

The Universities 

Beside the seats allotted to boroughs and counties there 
are a few reserved for the universities. They have, indeed, 
been increased by the act. The two members each of Ox- 
ford, Cambridge and Dublin, the one for London, and the 
two elected by the four Scotch universities, have been re- 
tained; and there have been added, one member for the 
university of Wales, two for the English provincial univer- 
sities as a group, another for those in Scotland, and one each 
for Queen's at Belfast and the National university of Ire- 
land. These members are elected by all holders of a degree 
from the university, 1 whether men or women; 2 and, where 
more than one member is to be elected by a university con- 
stituency, the principle of minority representation is in- 
troduced by allowing each voter to cast only one vote, 
according to the system of preferential, transferable voting. 3 
The House of Lords wanted proportional representation for 
many other seats, as a protection against popular waves of 
impulse. To this the Commons would not agree; and finally 
a compromise was reached whereby, apart from the uni- 
versity constituencies, it was provided 4 that the crown may 
appoint commissioners to prepare a scheme for the choice, 
by proportional representation, of one hundred members in 
constituencies to be formed by combining existing districts 
into groups electing from three to five members. The 
scheme is to take effect if approved by both Houses of 
Parliament. 

1 § 2 except honorary degrees. There are special provisions for the Scotch 
universities and for that of Dublin. 

2 For women see § 4. As in other cases women must be thirty years of 
age. Women who have qualified for a degree by residence and examination 
can vote although, as in Oxford and Cambridge, the university does not 
confer degrees upon them. 

3 § 20. 4 § 20 (2). 



32 GREATER EUROPEAN GOVERNMENTS 

The Parliamentary Franchise for Men 

For boroughs and counties the old qualifications for 
voters were swept away, and the suffrage extended to all 
men who for six months prior to the biennial registration 
reside in the constituency or in an adjoining borough or 
county. This established complete manhood suffrage for 
residents; but one of the compromises in the act was the 
retention, to a certain extent, of a representation of business 
interests also. It took the form of allowing a man to vote 
in a constituency where he carries on his business, profession 
or trade, although not a resident, if he occupies land or 
premises of the annual value of ten pounds. 1 He cannot, 
however, vote in more than one constituency of any kind 
besides the one in which he resides. 2 Provision is also made 
for voting by mail in the case of persons unavoidably absent 
from the election; and for soldiers, sailors, merchant sea- 
men and fishermen who may, under certain circumstances, 
vote by proxy. 3 Moreover, soldiers and sailors in active 
military service who have attained the age of nineteen may 
vote, although the age for other men is twenty-one. 4 

The Local Franchise for Men 

The right to vote for local governing bodies has always 
differed from the parliamentary franchise, and has not been 
the same for all local bodies. The act sought to simplify this 
also; but objection was raised to a complete extension of 
manhood suffrage to local elections, on the ground that the 

i 8 Geo. V, c. 64, § 1. 

2 Id., § 8. This includes the universities. The act also provides that at 
a general election the voting shall take place everywhere on the same day 
(§ 21), thereby abolishing a practice that was alleged to have been abused 
for party purposes. 

3 Id., § 23. « Id., § 5. 



ENGLAND: PARLIAMENT 33 

costs of local government fall on the rate payers alone; and 
that, as the rates are assessed only on the occupiers of land 
and buildings, they ought to be the voters. The act pro- 
vided, therefore, that the local franchise shall be limited to 
occupiers, as owners or tenants, of any land or premises 
within the area. 1 The persons excluded are mainly servants 
and bachelors living in the parental home; and, on the other 
hand, men are included, as before, who reside outside the 
area but carry on their occupation on their own account 
within it. 

The Franchise for Women 

The right of women to vote which had not been acquired 
by violence, was achieved by women's work in the war. 
There was a general desire to extend the franchise to them, 
but it was not thought wise to create an electorate prepon- 
derately feminine, which would be the result of extending 
the franchise to women on the same terms as to men. To 
avoid this their right to vote was limited in two ways, by 
age and by requiring them to be occupiers. The act pro- 
vides, 2 therefore, that a woman shall be entitled to be a par- 
liamentary elector if she is thirty years old, and occupies any 
dwelling, or any other land or premises of the annual value 
of five pounds, or is the wife of such an occupier. In local 
government elections she is entitled to vote as a man would 
be if she is an occupier in her own right; she is also entitled 
to vote if thirty years old and the wife of a man occupying 
premises in which they both reside. Thus a woman cannot 
vote for Parliament unless she is thirty years old and an 
occupier in her own right or that of her husband; but she 
can vote in local matters if twenty-one, provided she is an 

1 Except furnished lodgings. 8 Geo. V, c. 64, § 3. 

2 Id., § 4. 



34 GREATER EUROPEAN GOVERNMENTS 



occupier in her own right, the reason being that in certain 
cases she already had this last privilege. 

The act has doubled the parliamentary electorate, in- 
creasing the voters from eight millions to sixteen millions, 
chiefly by the addition of women. What the effect upon 
politics will be no one yet knows, and it is useless to attempt 
to predict. That it will bring about some change in the 
method of electioneering and the proceedings of candidates 
there can be little doubt. 

Candidates and Elections 

In fact the act itself contains provisions that touch upon 
the position of candidates. An enlarged electorate would 
naturally involve increased expense, especially since the 
laws against corrupt practices limited the amount a candi- 
date might spend to a fixed sum for each registered voter in 
the constituency. This is reduced for each voter to seven 
pence in a county and five pence in a borough, in addition 
to certain personal expenses and fees of the candidate l — a 
reduction not far from proportionate to the increase of the 
electorate. It leaves the total expenditure of the candi- 
date nearly what it was before; but the act also provides 
that the charges of the returning officer for the erection of 
polling booths and the attendants thereat, which were 
formerly paid by the candidates, shall be defrayed by the 
public treasury. 2 Fearing that the reduction in cost might 
multiply needlessly futile candidates the act obliges each 
of them to deposit one hundred and fifty pounds to be for- 
feited if he fails to receive one-eighth of the votes cast. 3 It 
may be observed that the restrictions upon the cost of 

1 8 Geo. V, c. 64, Schedule 4. 

2 Id., § 29. 

3 Id., §§ 26, 27. 






ENGLAND: PARLIAMENT 35 

elections do not touch the practice known as nursing con- 
stituencies, that is, seeking the favor of the voters by spend- 
ing money on public objects well in advance of the election. 
In 191 1 the House of Commons, by inserting an appro- 
priation in its vote of supply introduced the payment of its 
members. In the same year a statute reduced the term of 
Parliament from seven to five years. 1 

The Commons^ House 

Even the arrangement of seats in the House is not with- 
out its bearing upon political life; and although a small 
matter, it affords another illustration of the principle that 
an institution which, instead of being deliberately planned, 
is evolved slowly, will develop in harmony with its environ- 
ment, or force its environment into harmony with itself. 
The front bench at the upper end of the aisle, close at the 
right hand of the Speaker, is called the Treasury Bench, and 
is reserved for the ministers; the corresponding bench on 
the other side being occupied by the former ministers of the 
party now in Opposition. Behind these two benches sit for 
the most part men whose fidelity to their respective parties 
is undoubted, members whose allegiance is less absolute 
generally preferring seats below the gangway on either side. 

The Speaker 

The Speaker of the House of Commons occupies a highly 
honorable and important position, but in some respects the 
custom of his election is peculiar. If only one person is 
nominated, he is called to the chair without a vote. If more 
than one, they are voted upon successively, a majority being 
required for election. 2 The proposer and seconder are al- 
ways private members, for it is considered more fitting that 

1 1-2 Geo. V, c. 13, § 7. 2 May, p. 151. 



36 GREATER EUROPEAN GOVERNMENTS 

the ministers should not be prominent in the matter. 1 The 
Speaker is, however, always selected by the government of 
the day, and a new Speaker is always taken from the ranks 
of the party in power. Sometimes the election is not un- 
contested, and this happened when Mr. Gully was chosen 
in 1895. But although the Speaker may have been opposed 
when first chosen, and although he is elected only for the 
duration of the Parliament, it has now become the invari- 
able habit to reelect him so long as he is willing to serve. 
The Speaker is purely a presiding officer. He has nothing 
to do with appointing any committees, or guiding the House 
in its work. He is not a leader but an umpire, otherwise 
he could not remain in the chair through changes of party. 
As an umpire, however, his powers are very great, and in 
some cases under the modern changes in the standing orders 
they are autocratic. Moreover, from his decision on those 
matters, or on any points of order, there is no appeal. 2 
The House can suspend or change its own rules by a simple 
majority vote, but it cannot in a concrete case override the 
Speaker's construction of them. 3 

The Committees 

No great representative assembly at the present day can 
do all its work in full meeting. It has neither the time, the 
patience nor the knowledge required. Its sittings ought not 

1 Cf. ibid. t p. 150, note 3. 

2 But the Speaker himself may submit a question to the judgment of the 
House. May, p. 331. 

3 The action of the Speaker can be brought before the House only by a 
motion made at another time after due notice, but this is, of course, almost 
useless for the purpose of reversing the ruling complained of: Hans. 3d Ser., 
cclviii. 10, 14. On the occasion when Speaker Brand made this ruling 
he intimated that a member making on the spot a motion to disagree with 
it would be guilty of disregarding the authority of the chair, and liable to 
suspension under the standing orders. Ibid., p. 9. 



ENGLAND: PARLIAMENT 37 

to be frittered away in discussing proposals that have no 
chance of success; while measures that are to be brought 
before the whole body ought to be threshed out beforehand, 
their provisions carefully weighed and put into precise lan- 
guage, objections, if possible, met by concession and com- 
promise, or brought to a sharp difference of principle. In 
short, they ought to be put into such a shape that the assem- 
bly is only called upon to decide a small number of perfectly 
definite questions. To enable it to do so intelligently it may 
be necessary also to collect information about doubtful 
facts. Modern assemblies have sought to accomplish these 
results mainly by committees of some kind; and in England 
where the parliamentary form of government has reached 
a higher development than anywhere else, the chief instru- 
ment for the purpose is that informal joint committee of 
the houses, known as the cabinet. But unless Parliament 
were to be very nearly reduced to the role of criticizing the 
ministers, and answering yes or no to a series of questions 
propounded by them, it must do a part of its work through 
other committees. 

The Committee of the Whole 

The most important committee, the Committee of the 
Whole, is not in this sense a committee at all. It is simply 
the House itself acting under special forms of procedure; 
the chief differences being that the chairman of committees 
presides, and that the rule of the House forbidding a mem- 
ber to speak more than once on the same question does not 
apply. But the fact that a member can speak more than 
once makes it a real convenience for the purpose for which it 
is chiefly used, that is, the consideration of measures in de- 
tail, such as the discussion and amendment of the separate 
clauses of a bill, or the debates upon different items of ap- 



38 GREATER EUROPEAN GOVERNMENTS 

propriations. The Committee of the Whole has had a long 
history. 1 It is called by different names according to the 
subject matter with which it deals. For ordinary bills it 
is called simply the Committee of the Whole. When en- 
gaged upon appropriations it is called Committee of the 
Whole on Supply, or in common parlance the Committee of 
Supply. When providing money to meet the appropriations 
it is called the Committee of Ways and Means. 

Select Committees 

Of the real committees the most numerous are the select 
committees whose normal size is fifteen members. They 
are usually appointed, in part at least, by the Committee of 
Selection, which is chosen by the House at the beginning of 
each session, 2 but whose members are in fact designated by 
an understanding between the leaders of the two great 
parties in the house. The object is to secure an impartial 
body for the selection of other committees of all kinds, and 
so far is this object attained that in the memoir of Sir John 
Mowbray who was its chairman continuously for thirty- 
two years, we are told that divisions in the committee are 
rare, and never on party lines. 3 

The sessional select committees are the Committee on 
Public Accounts, 4 which goes through the report of the 
Auditor and Comptroller General, considers in detail ob- 
jections to the legality of any expenditures by the public 
departments, examines witnesses thereon, and reports to 
the House; the Committee on Public Petitions, appointed 
to inspect the numerous petitions presented to the House; 5 

1 Redlich, Reckt und Technik des Englischen Parliamentarismus, pp. 474- 
478. 

2 Standing Orders (relative to private business), p. 98. 

3 Seventy Years at Westminster, pp. 267 et seq. 

« S. O., p. 75- s S. O., pp. 76-80. 



ENGLAND: PARLIAMENT 39 

and the Committee on the Kitchen and Refreshment Rooms 
which has importance for the members of the House, though 
not for the general public. 

The other select committees are created to consider some 
special matter that is referred to them, either a bill, or a sub- 
ject upon which the House wishes to institute an inquiry. 1 
In either case the chief object of the committee is to obtain 
and sift information. 2 Select committees are the organs, 
and the only organs, of the House for collecting evidence and 
examining witnesses; and hence they are commonly given 
power to send for persons, papers and records. They sum- 
mon before them people whose testimony they wish to 
obtain. They keep minutes, not only of their own proceed- 
ings, but also of all evidence taken before them; and these, 
together with the report of their conclusions, are laid before 
the House 3 and published among the parliamentary papers 
of the session. The fact that men with all shades of opinions 
sit upon these committees, and have an opportunity to ex- 
amine the witnesses, lifts their reports, and still more the 
evidence they collect, above the plane of mere party docu- 
ments, and gives them a far greater permanent value. 

1 The question often arises whether inquiry shall be conducted by a com- 
mittee of the house, or by a commission appointed by the government. 
When the matter is distinctly political a committee of the house is the 
proper organ; but when the judgment of outside experts is needed the other 
alternative is obviously preferable, several members of Parliament being 
often included in such cases. Naturally enough, the ministry and the mem- 
bers chiefly interested in pushing an inquiry do not always agree about 
the matter. One instance of a dispute on this point was that in relation to 
the grievances of post-office employees. Another famous example occurred 
upon the charges made by The Times against Parnell in connection with 
the forged Pigott Letters. 

2 May, pp. 469-470. 

3 S. O., pp. 59-61, 63. 



40 GREATER EUROPEAN GOVERNMENTS 

Standing or Grand Committees 

As the pressure for time in the House of Commons grew 
more intense, select committees that collected information 
were not enough. Something was needed that would save 
debate in the House, and for this purpose resolutions were 
adopted on Dec. i, 1882, for setting up two large committees 
on bills relating to law and to trade, whose deliberations 
should take the place of debate in the Committee of the 
Whole. As distinguished from select committees, which 
expire when they have made a report upon the special mat- 
ters committed to their charge, they were made standing 
bodies, lasting throughout the session. They consist of not 
less than sixty nor more than eighty members of the House, 
appointed by the Committee of Selection, which has power 
to discharge members and substitute others during the 
course of the session. In order to secure the presence of 
persons who may throw light on any particular bill, the same 
committee can also appoint not more than fifteen additional 
members for the consideration of that bill. 

With a view to enlarging the legislative capacity of Par- 
liament a select committee on Procedure in the House of 
Commons reported on May 25, 1906, in favor of increasing 
the number of standing committees from two to four, and 
making the reference of bills to them the normal, instead of 
an exceptional, procedure. The plan was adopted in the 
following year, and hence all bills, except money bills and 
bills for confirming provisional orders, are now referred to 
one of the standing committees, unless the House otherwise 
order on a motion to be decided without amendment or 
debate. The bills are distributed among the committees by 
the Speaker. 



ENGLAND: PARLIAMENT 4 1 

The object of the change was to give a better chance of 
enactment for measures which there is not time to debate in 
Committee of the Whole; and the provision that the House 
may vote not to send a bill to a standing committee was de- 
signed chiefly for the great party measures of the govern- 
ment which must always be debated in the House itself. 

Procedure on Public Bills 

A public bill, when presented, is read a first time, and in 
the case of government bills, this is an occasion for a speech 
explaining its object, and a debate. 

The next step, and, except on great party measures, the 
first occasion for a debate, is the second reading. This is the 
proper stage for a discussion of the general principles of the 
bill, not of its details, and amendments to the several clauses 
are not in order. 

After the second reading a bill, until 1907, went normally 
to the Committee of the Whole, with or without instruc- 
tions, and now it goes there if the House so decides. When 
the order of the day for the Committee of the Whole is 
reached the Speaker leaves the chair, and the House goes 
into committee without question put. 1 This is the stage for 
consideration of the bill in detail, and the clauses are taken 
up one after another, the amendments to each clause being 
disposed of in their order. Then new clauses may be pro- 
posed, and finally the bill is reported back to the House. 

Normally a bill goes either to the Committee of the Whole 
or to a standing committee, but after it has been read a sec- 
ond time a motion may be made to refer it to a select com- 
mittee. Such a reference simply adds a step to the journey 
of the bill, for when reported it goes to a standing committee 
or to the Committee of the Whole. A standing committee, 
1 S. O., p. 51. Adopted in 1888. 



42 GREATER EUROPEAN GOVERNMENTS 

on the other hand, is, as already explained, a substitute for 
the Committee of the Whole. It deals with the bill in pre- 
cisely the same way, reporting it back to the House amended 
or unchanged. 

When a bill has been reported from the Committee of the 
Whole with amendments, 1 and when it has been reported 
from a standing committee whether amended or not, 2 it is 
considered by the House in detail, upon what is known as 
the report stage. The object is to give the House an op- 
portunity to review the work done in committee, and see 
whether it wishes to maintain the amendments there 
adopted. 

The next, and now the last, stage of a bill in the House of 
Commons is the third reading. Like the second reading, 
this raises only the question whether or not the House ap- 
proves of the measure as a whole. Verbal amendments 
alone are in order, and any substantial alteration can be 
brought about only by moving to recommit. 

Leaving out of account the first reading, which rarely 
involves a real debate, the ordinary course of a public bill 
through the House of Commons gives, therefore, an oppor- 
tunity for two debates upon its general merits, and between 
them two discussions of its details, or one debate upon the 
details if that one results in no changes, or if the bill has been 
referred to a standing committee. 

Procedure on Money Bills 

The procedure in the case of financial measures differs in 
important respects from that followed in passing other bills. 
With some exceptions all the national revenues are first paid 
into the Consolidated Fund, and then drawn out of it to 
meet the expenditures of the government. The financial 
* S. O., p. 39. 2 S. O., p. 50. 



ENGLAND: PARLIAMENT 43 

work of Parliament turns, therefore, upon the processes of 
getting money into and out of that fund. The second 
process comes first in the order of parliamentary business, 
and its nature is fixed by two standing orders, which date 
from the early years of the eighteenth century. One of 
them, adopted in 1707, provides that the House will not 
proceed upon any petition or motion for granting money but 
in Committee of the Whole House; x the other, that it will 
not receive any petition, or proceed upon any motion, for a 
grant or charge upon the public revenue unless recom- 
mended from the crown. 2 

This last rule, first adopted by a resolution in 1706, and 
made a standing order in 1713, 3 was designed to prevent im- 
provident expenditure on private initiative. It has proved 
not only an invaluable protection to the Treasury, but a 
bulwark for the authority of the ministry. 4 Its importance 
has been so well recognized that it has been embodied in 
the fundamental laws of the self-governing colonies; 5 while 
some foreign countries, like France and Italy, that have 
copied the forms of parliamentary government, without 

1 S. 0., p. 67. 

2 S. 0., p. 66. May (p. 527) points out that these two rules, together with 
S. O.. p, 68, adopted in 1715, that the House will receive no petition for com- 
pounding a revenue debt due to the crown without a certificate from the 
proper officer stating the facts, were for more than a century the only stand- 
ing orders of the House. 

3 Todd, Pari. Government in England, 2d ed., i. 691. 

4 As an illustration of the fact that the rise of the authority exerted by 
ministers over Parliament was contemporary with the loss by the king of 
personal legislative power, Todd (ii. 390) remarks that this rule was first 
adopted in 1706, and the last royal veto was given in 1707. 

5 E. g., British North Amer. Act, § 54. Commonwealth of Australia 
Constitution Act, § 56. 

After the government of India was transferred from the East India 
Company to the crown, in 1856, the rule was extended to motions for a 
charge upon the Indian revenue. S. 0., p. 70. 



44 GREATER EUROPEAN GOVERNMENTS 

always perceiving the foundation on which they rest, have 
suffered not a little from its absence. 

As grants of money can be taken up only in Committee of 
the Whole, and only on the recommendation of the crown, 
— that is, of a minister — the House resolves itself, early 
in the session, into Committee of the Whole on Supply, to 
consider the estimates submitted by the government. 1 

Certain fixed charges, such as the interest on the national 
debt, the royal civil list, and the salaries of the judges, are 
payable by statute out of the Consolidated Fund, and hence 
do not require an annual vote of Parliament, or come before 
the Commit teee of Supply. The estimates for the rest of the 
expenditures for the coming year, known as the supply serv- 
ices, are divided into three parts, relating to the army, the 
navy, and the civil services. The last of the three is divided 
into classes, and all of them are divided into grants or votes, 
which are in turn subdivided into subheads and items. 
Each grant is the subject of a separate vote in Committee of 
Supply, and amendments may be moved to omit or reduce 
any item therein. 

But the committee merely passes and reports to the House 
resolutions in favor of those grants, and the money cannot 
be paid out of the Consolidated Fund without the authority 
of a statute. The next step is taken in the Committee of 
the Whole on Ways and Means, where on the motion of a 
minister another resolution is passed, that to make good the 
supply already voted, the sum required be granted out of 
the Consolidated Fund. This in turn must be reported to 
and confirmed by the House. 2 A bill called a Consolidated 

1 S. 0., p. 14 provides that the Committees of Supply and Ways and 
Means shall be set up as soon as the address in reply to the king's speech has 
been agreed to. 

2 On the procedure in the Committee of Ways and Means, and on Report 
from Committee of Supply and of Ways and Means, see May, pp. 588 et seq. 



ENGLAND: PARLIAMENT 45 

Fund Bill is then brought in to give effect to the resolution. 
The bill, with the separate grants, annexed in a schedule, 
goes through the ordinary stages; but the time spent upon 
it is short, because its only object being to authorize the 
issue of money to cover the supply already voted, no amend- 
ment can be moved to reduce the amount, or change the 
destination, of the grants. 1 

The Budget 

So much for the process of getting money out of the Con- 
solidated Fund. That of getting money into the fund goes 
on at the same time, but independently. It is usually early 
in April that the Chancellor introduces his budget in the 
Committee of Ways and Means. In an elaborate speech he 
reviews the finances of the past year, comparing the results 
with the estimates, and dealing with the state of trade and 
the national debt. He then refers to the estimates already 
submitted, and coming to the gist of his speech, and the part 
of it that is awaited with curiosity, he explains how he pro- 
poses to raise the revenue required to meet the expenditures. 
The budget speech of the Chancellor of the Exchequer is 
followed by a general discussion of the questions he has 
raised; and either at once, or on subsequent days, by de- 
bates and votes upon the resolutions he has brought in. 
The resolutions when adopted are reported to the House for 
ratification, but as in the case of supply, they have no legal 
effect until enacted in the form of a statute. 

The Public Accounts 

The whole initiative, as regards both revenue and ex- 
penditure, lies with the government alone. The House has 
merely power to reject or reduce the amounts asked for, 

1 May, p. 526; Ilbert, Manual, § 245, note. 



46 GREATER EUROPEAN GOVERNMENTS 

and it uses that power very little. Financially, its work is 
rather supervision than direction; and its real usefulness 
consists in securing publicity and criticism rather than in 
controlling expenditure. It is the tribunal where at the 
opening of the financial year the ministers must explain and 
justify every detail of their fiscal policy, and where at its 
close they must render an account of their stewardship. 
This last duty is highly important. The House receives 
every year reports of the administration of the finances 
from three independent bodies, or, to be more accurate, it 
receives two distinct sets of accounts and one report. As 
soon as possible after the close of the financial year, the 
Treasury submits the Finance Accounts, which cover all 
receipts paid into, and all issues out of, the Consolidated 
Fund, giving the sources from which the revenue was de- 
rived and the purpose for which the issues were made. 

Meanwhile the Comptroller and Auditor General — who 
holds his office during good behavior, with a salary paid 
by statute directly out of the Consolidated Fund, and who 
considers himself in no sense a servant of the Treasury, but 
an officer responsible to the House of Commons l — ex- 
amines the accounts of the several departments. This is 
a matter requiring much time, and it is not until the open- 
ing of the next regular session that he presents what are 
known as the Appropriation Accounts, 2 covering in great 
detail the actual expenditures in all the supply services, 
with his reports and comments thereon. 3 

1 See his evidence before the Com. on Nat. Expend., Com. Papers, 1902, 
vii. 15, Qs. 764-769, 831. 

2 Thus the Parliamentary Papers for 1903 contain the Finance Accounts 
for the financial year ending March 31, 1903, and the far more elaborate 
Appropriation Accounts for the year ending March 31, 1902. 

3 He presents also separate accounts of the Consolidated Fund services, 
and other matters, with reports upon them. 



ENGLAND: PARLIAMENT 47 

His accounts and reports are referred to the Committee 
of Public Accounts, which consists of eleven members of the 
House chosen at the beginning of the session, 1 and includes 
the Financial Secretary of the Treasury, some one who has 
held a similar office under the opposite party, and other men 
interested in the subject. It inspects the accounts and the 
Comptroller and Auditor General's notes of the reason why 
more or less than the estimate was spent on each item. 
It inquires into the items that need further explanation, 
examining for the purpose the auditing officers of the depart- 
ments, and other persons; and it makes to the House a re- 
port or series of reports, which refer in detail to the cases 
where an excess grant must be made by Parliament, or a 
transfer between grants in the military departments must be 
approved. 

Framing Legislative Questions 

For the purpose of collective action every body of men is 
in the plight of M. Noirtier de Villefort in " Monte Oris to," 
who was completely paralyzed except for his eyes. Like 
him it has only a single faculty, that of saying Yes or No. 
Individually the members may express the most involved 
opinions, the most complex and divergent sentiments, but 
when it comes to voting, the body can vote only Yes or No. 
Some one makes a motion, some one else moves an amend- 
ment, perhaps other amendments are superimposed, but on 
each amendment in turn, and finally on the main question, 
the body simply votes for or against. 

1 S. O., p. 75. For a brief history of the system of audit, and the laying 
of accounts before Parliament, see the memorandum by Lord Welby. Rep. 
Com. on Nat. Expend., Com. Papers, 1902, vii. 15, App. 13. See also the 
description by Hatschek, in his Englisches Staatsrecht (pp. 495-500), of the in- 
troduction into England of double entry and the French system of keeping 
the national accounts. 



48 GREATER EUROPEAN GOVERNMENTS 

Obviously, therefore, it is of vital importance to know 
who has power to ask the question. In small bodies that 
have limited functions and an abundance of time, the mem- 
bers are free to propose any questions they please; but in 
large assemblies, all of whose proceedings are of necessity 
slower, this freedom is curtailed by lack of time, especially 
if the range of activities is wide. Hence the legislatures of 
all great states have been constrained to adopt some process 
for restricting or sifting the proposals or bills of their mem- 
bers. The most common device is that of referring the bills 
to committees, which can practically eliminate those that 
have no serious chance of success, and can amend others, 
putting them into a more acceptable form. In such cases 
the committees enjoy, if not the exclusive privilege of pro- 
posing questions to the legislature, at least the primary 
right of framing the questions that are to be submitted, and 
this gives them a momentous power. 

The cabinet has been said to be a committee, and the most 
important committee of the House of Commons; but it is 
really far more. Unlike an ordinary committee, it does not 
have the bills of members referred to it. On the contrary it 
has the sole right to initiate, as well as to frame, the meas- 
ures it submits to the House; and these comprise, in fact, 
almost all the important bills that are enacted. By far the 
greater part of legislation originates, therefore, exclusively 
with the ministers. The system of a responsible ministry 
has obstructed the growth of committees; because, in the 
case of government measures, the chief function of such 
committees, that of sifting bills and putting them into 
proper shape, is performed by the cabinet itself; and also 
because, as will be shown hereafter, the authority of the 
cabinet would be weakened if other bodies, not necessarily 



ENGLAND: PARLIAMENT 49 

in accord with it, had power to modify its proposals. In 
this connection it may be observed that in the domain of 
bills for private and local objects, to which the responsibility 
of the cabinet does not extend, there has developed a most 
elaborate and complete set of committees, to which all such 
bills are referred. 

Private Members' Bills 

Private members are free to bring their public bills be- 
fore the House, unfettered by any committee, provided they 
can find a chance to do so in the extremely meagre allow- 
ance of time at their disposal. In short the Commons have 
solved the question of time by giving most of it to the gov- 
ernment, and leaving the private members to scramble for 
the rest by drawing lots for it. 

A private member must be very fortunate in the ballot, 
or he must have a number of friends interested in the same 
bill, to get it started with any prospect of success; and 
even then there is scarcely a hope of carrying it through 
if a single member opposes it persistently at every point. 
Only ten or fifteen such bills are enacted a year, and of these 
only a couple provoke enough difference of opinion to lead 
to a division during their course in the House. 1 

All the sittings not reserved for private members are at 
the disposal of the government, which can arrange the order 
of business as it pleases. 2 

1 Although the time at the disposal of private members has not changed 
much of late years, the number of these bills enacted, and especially of those 
enacted against opposition, has diminished sensibly. In the decade from 
1878 to 1887 about twenty-three such bills were passed a year, and on four 
or five of these divisions took place. 

2 s. a, P . s. 



SO GREATER EUROPEAN GOVERNMENTS 

The Cabinet's Control of Legislation 

The responsibility of the ministers for the legislation they 
propose is a comparatively recent matter. 1 By the middle 
of the nineteenth century it had begun to be recognized, and 
at the present day, the ministers would treat the rejection of 
any of their important measures as equivalent to a vote of 
want of confidence. 2 Moreover, the government is respon- 
sible not only for introducing a bill, but also for failing to do 
so. At a meeting in the autumn the cabinet decides upon the 
measures it intends to bring forward, and announces them in 
the king's speech at the opening of the session. Amend- 
ments to the address in reply are moved expressing regret 
that His Majesty has not referred to some measure that is 
desired, and if such an amendment were carried it would 
almost certainly cause the downfall of the ministry. 

Following upon the responsibility for the introduction 
and passage of all important measures has come an in- 
creasing control by the ministers over the details of their 
measures. It was formerly maintained that the House 
could exercise a great deal of freedom in amending bills, 
without implying a loss of general confidence in the cabinet. 3 
But of late amendments carried against the opposition of 
the Treasury Bench have been extremely rare. This does 
not mean that the debates on the details of bills are fruit- 
less. On the contrary, it often happens that the discussion 
exposes defects of which the government was not aware, 

1 Cf. Todd, Pari. Government in England, ii. 368. Ilbert, Legislative 
Methods and Forms, pp. 82, 216. 

2 The only cases where a government bill has been rejected by the House 
of Commons for more than a score of years are those of the Home Rule Bill 
in 1886, on which the cabinet dissolved Parliament, and an insignificant bill 
on church buildings in the Isle of Man, which was defeated in a thin House 
in 1897. 

8 Cf. Todd, Pari. Government in England, ii. 370-372. 



ENGLAND: PARLIAMENT 5 1 

or reveals an unsuspected but widespread hostility to some 
provision; and when this happens the minister in charge 
of the bill often declares that he will accept an amendment, 
or undertakes to prepare a clause to meet the objection 
which has been pointed out. 1 But it does mean that the 
changes in their bills are made by the ministers themselves 
after hearing the debate, and that an amendment, even of 
small consequence, can seldom be carried without their con- 
sent. This is the natural outcome of the principle that the 
cabinet is completely responsible for the principal public 
measures, and hence must be able to control all their pro- 
visions so long as it remains in office. 

The Commons' Control over Administration 

If the relations between the cabinet and the House of 
Commons in legislative matters have changed, their rela- 
tions in executive matters have been modified also. If 
the cabinet to-day legislates with the advice and consent 
of the House, it administers subject to its constant super- 
vision and criticism. In both cases the relation is funda- 
mentally the same. In both the English system seems to 
be approximating more and more to a condition where the 
cabinet initiates everything, frames its own policy, submits 
that policy to a searching criticism in the House, and adopts 
such suggestions as it deems best; but where the House, 
after all this has been done, must accept the acts and pro- 

1 The minister often says that he will consider whether he can meet the 
views that have been expressed; and then on the report stage he brings up 
a compromise clause. An interesting example of this occurred on July 23, 
1906, when the Opposition complained that sufficient time had not been 
given for debating the educational council for Wales, the provisions pro- 
posed having been profoundly changed since it had been last before the 
House. The government replied that the changes had been made to meet 
objections raised by the Opposition itself. Hans. 4th Ser., clxi. 741 et.seq. 



52 GREATER EUROPEAN GOVERNMENTS 

posals of the government as they stand, or pass a vote of 
censure and take the chances of a change of ministry or a 
dissolution. 

The House of Commons does not often pass votes ask- 
ing for executive action in the future, but its members 
criticize the conduct of the government in the past freely 
and constantly. The opportunities for doing so are, indeed, 
manifold. There is first the address in answer to the king's 
speech at the opening of the session; then the questions 
day by day give a chance, if not for direct criticism, at 
least for calling the ministers to account; then there are 
the motions to adjourn; the private members' motions; 
the debates on going into the Committees of Supply and 
Ways and Means; the discussions in the Committee of 
Supply itself; the debates on the Consolidated Fund Reso- 
lutions, on the Appropriation Bill, and on the Budget; and, 
finally, the formal motions of want of confidence. 

Criticism and Censure 

But first it is important to distinguish between individual 
criticism by members, and collective censure by vote of the 
House. The former, whether coming from the seats behind 
the Treasury Bench, or from the opposite side of the floor, 
is in the nature of a caution to the ministers, an expression 
of personal opinion that is likely to find more or less of an 
echo outside of Parliament. It does not in itself imperil 
the position of the government at the moment, although the 
errors of the ministers pointed out in this way go into the 
great balance of account on which the nation renders its 
verdict at the next general election. But a collective cen- 
sure by vote of the House may mean immediate resignation. 
Now the system of a responsible ministry implies the alter- 
nation in power of two parties holding different views upon 



ENGLAND: PARLIAMENT 53 

the questions of the day. If it does not imply this; if the 
fall of one cabinet is followed by the appointment of another 
with a similar policy; then public life will revolve about 
the personal ambitions and intrigues of leading politicians, 
— a condition that has caused much of the discredit now 
attached to the parliamentary system in some continental 
states. But if a change of ministry involves the transfer of 
power to an Opposition with quite a different programme, 
it is clear that the change ought not to take place until the 
nation has declared, either at the polls, or through its rep- 
resentatives in the House of Commons, that it wishes that 
result. The ministers ought, therefore, to stand or fall 
upon their general policy, upon their whole record, or upon 
some one question that in permanent consequence out- 
weighs everything else, not upon a particular act of sec- 
ondary importance. Moreover the judgment ought to be 
given after mature deliberation, not in the heat of a debate 
upon some political blunder brought suddenly to the notice 
of the House. The Opposition can at any time claim to 
move a vote of want of confidence, and within reasonable 
limits the cabinet will always assign a day for the purpose. 
But this is quite a different matter from the criticism of 
particular acts. Whatever the precise form of any motion 
may be, if the the object is to turn the ministry out, every 
member goes into one or the other lobby, according to his 
desire that the cabinet shall stand or fall. The judgment of 
the House is passed not upon any one act or question of 
policy, but distinctly upon the record of the ministry as a 
whole; and a defeat must be immediately followed by 
resignation or dissolution. 

From a survey of the various methods by which the min- 
isters can be called to account in the House of Commons, 
it is clear that the opportunities to air grievances, to sug- 



54 GREATER EUROPEAN GOVERNMENTS 

gest reforms, and to criticize the government for both large 
matters and small, for their general policy and their least 
administrative acts, are many and constant. For the ob- 
ject they serve, that of turning a searchlight upon the gov- 
ernment, and keeping the public informed of its conduct, 
they are abundant. On the other hand, the opportunities 
to pass judgment by a definite vote upon particular acts of 
the ministers, as distinguished from their conduct as a 
whole, have diminished very much, and there is a marked 
tendency to make a definite expression of opinion on such 
matters by vote of the House more and more difficult. Such 
a tendency is entirely in accord with the true principle of 
parliamentary government. There ought to be the fullest 
opportunity for criticism ; but the cabinet must be free not 
only to frame its own policy, but also to carry that policy 
out, and it ought not to be shackled, or thrust out, so long 
as its conduct of affairs is on the whole satisfactory to the 
nation. 

Parliament the Inquest of the Nation 

The system of a responsible ministry can develop in a 
normal and healthy way only in case the legislative body 
is divided into two parties, and under those conditions it is 
the inevitable consequence of the system that Parliament 
cannot support the cabinet on one question and oppose it 
on another. The programme of the ministers must be ac- 
cepted or rejected as a whole, and hence the power of initia- 
tive, both legislative and executive, must rest entirely with 
them. This is clearly the tendency in Parliament at the 
present day. 1 The House of Commons is finding more and 

1 Redlich ends his book on the procedure of the House of Commons with 
the remark (p. 800), that the rules of a legislative body are the political 
manometer, which measures the strain of forces in the parliamentary ma- 
chine, and thereby in the whole organism of the state. 



ENGLAND: PARLIAMENT 55 

more difficulty in passing any effective vote, except a vote 
of censure. It tends to lose all powers except the power to 
criticize and the power to sentence to death. Parliament 
has been called the great inquest of the nation, and for that 
purpose its functions have of late been rather enlarged than 
impaired. Nor are the inquisitors confined to any one sec- 
tion of the House, for while that part is played chiefly by 
the Opposition, the government often receives a caution 
from its own supporters also. If the parliamentary system 
has made the cabinet of the day autocratic, it is an autoc- 
racy exerted with the utmost publicity, under a constant 
fire of criticism; and tempered by the force of public opinion, 
the risk of a vote of want of confidence, and the prospects 
of the next election. 

Private Bill Legislation 

If the direction of important legislation of a public char- 
acter lies almost altogether in the hands of the ministers, 
special laws affecting private or local interests are not less 
completely outside of their province. Private bill procedure 
has both a legislative and a judicial aspect. The final aim 
being the passage of an act, a private bill goes through all 
the stages of a public bill, and the records of its progress 
appear in the journals of the House. But the procedure is 
also regarded as a controversy between the promoters and 
opponents of the measure, and this involves an additional 
process of a judicial character. 

The committee stage of the bill, for the consideration of 
its provisions in detail, is devolved upon a private bill com- 
mittee. Here takes place the judicial process, or trial of the 
controversy between conflicting interests, which presents 
the peculiar feature of the English procedure. All opposed 
private bills are referred under the rules to the Committee 



S6 GREATER EUROPEAN GOVERNMENTS 

of Selection, which divides them into groups and refers each 
group to a committee, consisting of a chairman and three 
members not locally or otherwise interested, whom it ap- 
points for the purpose. 1 

The hearing of the parties before the committee follows 
the pattern of a trial in a court of law, even to the standing 
of the counsel employed. The proceedings are strictly 
judicial in form, the barristers examining and cross-examin- 
ing the witnesses and making the arguments in the ordinary 
way. Moreover, if either party has vexatiously subjected 
the other to expense, the committee can award costs like 
a court of law, and this is occasionally done. 2 

The English system of private bill legislation has its de- 
fects, but they are far more than outweighed by its merits. 
The curse of most representative bodies at the present day 
is the tendency of the members to urge the interests of their 
localities or their constituents. It is this more than any- 
thing else that has brought legislatures into discredit, and 
has made them appear to be concerned with a tangled skein 
of private interests rather than with the public welfare. 3 It 
is this that makes possible the American boss, who draws 
his resources from his profession of private bill broker. 
Now the very essence of the English system lies in the fact 
that it tends to remove private and local bills from the 
general field of political discussion, and thus helps to rivet 

1 SiO.P. B. pp. 98, 103, 105-106, 108, 110-113, 116-117, 208. Until a few 
years ago there was a paid referee who could sit on the committee with an 
advisory voice but no vote. May, p. 728. There were formerly two paid 
referees, and later only one. The procedure is slightly different in the case 
of railway, canal, divorce, police and sanitary bills, but the principle is sub- 
stantially the same. 

2 May, pp. 781-782. 

3 For a careful study from this point of view of a fairly good legislative 
body, by one of its members well fitted to observe, see an article by Francis 
C. Lowell, in the Atlantic Monthly, lxxix. 366-377, March, 1897. 



ENGLAND: PARLIAMENT 57 

the attention of Parliament upon public matters. A min- 
istry stands or falls upon its general legislative and ad- 
ministrative record, and not because it has offended one 
member by opposing the demands of a powerful company, 
and another by ignoring the desires of a borough council. 
Such a condition would not be possible unless Parliament 
was willing to leave private legislation in the main to small 
impartial committees, and abide by their judgment. 

The House of Lords 

The upper house of the British Parliament contains sev- 
eral kinds of members, for it must be remembered that 
every peer has not a right to sit, and all the members are 
not in the same sense peers. 

First there are the peers with hereditary seats. They 
consist of the peers of England created before the union 
with Scotland in 1707, the peers of Great Britain created 
between that time and the union with Ireland in 1801, and 
the peers of the United Kingdom created thereafter. Their 
titles in the order of their rank are those of dukes, mar- 
quises, earls, viscounts and barons. At present they are 
about five hundred and fifty in number, and they increase 
continually, for the crown, that is the ministry of the day, 
has unlimited power to create hereditary peers of the United 
Kingdom. 1 

When the union with Scotland was made the Scotch peers 
were much more numerous in proportion to population than 
the English; and therefore, instead of admitting them all 
to the House of Lords, it was provided that they should 

1 At one time the House of Lords held that a Scotch peer could not be 
given an hereditary seat as a peer of Great Britain; but this decision was 
afterwards reversed. A peer so created can still vote for representatives as 
a Scotch peer. Pike, Constitutional History of the House of Lords, pp. 361-363 . 



58 GREATER EUROPEAN GOVERNMENTS 

elect sixteen representatives of their order for the duration 
of each Parliament. No provision was made for the creation 
of new Scotch peers, so that with the dying out of families, 
and the giving of hereditary seats to Scotch peers by creat- 
ing them peers of the United Kingdom, the number of those 
who do not sit in the House has greatly diminished. 

The same problem arose upon the union with Ireland a 
hundred years later; but in this case the Irish peers were 
empowered to elect twenty-eight of their number repre- 
sentatives for life, and it was provided that one new Irish 
peerage might be created for every three that became ex- 
tinct until the number x fell to one hundred, a limit above 
which it cannot be raised. 2 There is another difference be- 
tween the Scotch and Irish peers. The former are wholly 
excluded from the House of Commons, but the latter can 
be elected by any constituency in Great Britain. 

The only spiritual peers in the House of Lords to-day are 
the English bishops, for the established church of Scotland 
is Presbyterian in form, and the Irish Anglican bishops lost 
their seats when their church was disestablished in 1869. 
All the English bishops, moreover, do not have seats, be- 
cause as the sees were increased it was not thought wise to 
enlarge the representation of the church; and, therefore, 
it was provided that the Archbishops of Canterbury and 
York, the Bishops of London, Durham and Winchester, 
and of the rest only the twenty seniors in the order of in- 
cumbency, should have seats in the House. 

The House of Lords is not only a legislative chamber but 
also the highest court of appeal for the United Kingdom. 
When it acts as a court only those members who hold, or 
have held, high judicial office take part; but there are 

1 Exclusive of those having hereditary seats under other titles. 

2 The number is now less than one hundred. 



ENGLAND: PARLIAMENT 59 

rarely enough of these for a court of last resort, and hence 
four additional judges are provided by the appointment of 
Lords of Appeal in Ordinary for life. It may be added that 
the presiding officer of the House is the Lord Chancellor, 
who tills at the same time the highest judicial office in the 
Kingdom. 

The Powers of the House of Lords 

Save for an ancient custom, rigidly insisted upon by the 
Commons, that the Peers must not initiate or amend bills 
to raise or spend money, the House of Lords had the same 
legislative rights as the other chamber until recent events 
brought a crisis in its history. It had always been in the 
habit of amending the measures of the cabinet, sometimes 
very freely. In fact the Lords were bolder in the twenty 
years preceding 191 1 than they had formerly been. In 1893 
they rejected Mr. Gladstone's Home-Rule Bill, and at the 
succeeding general election in 1895 the people appeared to 
ratify their action by returning a Unionist majority to Par- 
liament. This emboldened the Lords to claim a right of 
appeal from the cabinet and the majority in the Commons to 
the electorate — a right, it was said, to demand a sort of 
referendum. That might have been well enough had not the 
House of Lords always acted with one of the great parties in 
the state and opposed the other. While the Conservatives 
were in power it was docile, but when the Liberals came into 
office in 1906 it rejected or mutilated a series of government 
measures. 

Finally, in 1909, the expense of old age pensions caused 
the Chancellor of the Exchequer to propose heavy taxes 
on the unearned increment — that is the increase in value — 
of land, and on undeveloped land in or near cities, together 
with a supertax on incomes and an increase of the death 
duties. The Conservatives were exasperated, and when the 



60 GREATER EUROPEAN GOVERNMENTS 

finance bill came before the Lords they voted " that this 
House is not justified in giving its consent to this Bill until 
it has been submitted to the judgment of the country." 
The Liberal cabinet accepted the challenge, dissolved Par- 
liament, and, although it lost seats at the election in Janu- 
ary, 1 910, it obtained a majority in the new House of 
Commons, and the finance bill passed into law. 

The Act of ign 

The Liberals were not satisfied. They had made up their 
minds to restrict the power of the Lords, and a government 
bill was brought in for the purpose. Finding that the Lords 
were certain to reject it the cabinet again dissolved Parlia- 
ment, and at the election in December, 1910, was again 
victorious. The Commons passed the bill; the Lords still 
hesitated, but a threat to create peers enough to turn the 
scale brought many of them round. A majority of the 
Lords voted in its favor and it became law on August 18, 
1911. 1 

In substance the act provides that if a bill to raise or 
expend money, which has been passed by the Commons and 
sent to the Lords at least a month before the end of the 
session, is not passed by them without amendment within 
one month it shall become an act on receiving the royal 
assent; 2 and that if any other public bill passed by the 
Commons in three successive sessions is not passed by the 
Lords without amendments, or with such amendments as 
the Commons accept, it shall become an act on receiving 
the royal assent, provided two years have elapsed between 
the first and last vote in the Commons. On the questions 

1 1-2 Geo. V, c. 13. 

2 Provisions dealing with the raising and expenditure of money by local 
authorities are not included. 



ENGLAND: PARLIAMENT 6 1 

whether a bill is a money bill or not, and whether the pro- 
visions of the act have been complied with, the decision of 
the Speaker of the House of Commons is final. Over money 
bills, therefore, the power of the Lords is virtually abolished, 
while on other bills it can propose amendments and can 
delay action for two years. 

Restricting the power of the Lords was to be followed by 
a reorganization of the composition of their house. The 
problem, however, of constructing an upper chamber strong 
enough to be useful, and not so strong as to hamper a min- 
istry responsible only to the Commons, is not a simple 
matter. The subject has been carefully considered by a com- 
mission, but as yet no action has been taken by Parliament. 

The Cabinet and the Country 

We have now considered the relation of the cabinet to the 
administrative service, to the House of Commons, and to the 
House of Lords. There remains to be touched upon its 
relation to the country. 

If the predominance of the House of Commons has been 
lessened by a delegation of authority to the cabinet, it has 
been weakened also by the transfer of power directly to the 
electorate. The two tendencies are not, indeed, uncon- 
nected. The transfer of power to the electorate is due in 
part to the growing influence of the ministers, to the recogni- 
tion that policy is mainly directed, not by Parliament, but 
by them. The cabinet now rules the nation by and with the 
advice and consent of Parliament; and for that very reason 
the nation wishes to decide what cabinet it shall be that 
rules. No doubt the ministry depends for its existence upon 
the good pleasure of the House of Commons; but it really 
gets its commission from the country as the result of a gen- 
eral election. 



62 GREATER EUROPEAN GOVERNMENTS 

The passing of political power from the House of Com- 
mons to the people is shown by many unmistakable signs, 
and by none more clearly than by the frequent reference in 
Parliament itself to the opinions of the " man in the street." 
He is said to fear this, or be shocked by that, or expect the 
other; and the House is supposed to pay some regard to his 
views. Then there is the fact that Parliament is no longer 
the only place where the party leaders make notable 
speeches. In short, the predominance of the House of Com- 
mons as the great forum for the discussion of public ques- 
tions has been undermined by the rise and growth of the 
platform. It has now become a settled custom for the cab- 
inet ministers and the leaders of the parliamentary Opposi- 
tion to make a business of speaking during the late autumn 
and the spring recess; and the habit tends to magnify their 
power, for they are the only persons who have fully the ear 
of the public. Frequent public addresses by the men in 
whom the whole responsibility for the conduct of national 
affairs is concentrated, and by those who will be responsible 
when the next change of ministry occurs, cannot fail to 
educate the voters, and quicken their interest in all the 
political issues of the day. The rulers of the country, and 
those who both have been and will be her rulers, fight at 
close range across a table for six months of the year, and 
during the rest of the time they carry on the ceaseless war 
by public speaking. As in the Athenian democracy, the 
citizens witness a constant struggle among rival statesmen 
for supremacy, but in England they are merely spectators 
until a general election summons them to give their verdict. 
One can hardly conceive of a system better calculated to 
stimulate interest in politics without instability in the 
government. 



CHAPTER III 

ENGLAND: PARTY 

Parties during the War 

A few months after this war broke out a coalition cabinet 
was formed. Both parties rallied to the support of the gov- 
ernment, and during the war there has been a truce in the 
usual party struggles. The ministry and the front opposi- 
tion bench have not been fighting across the table, and, 
therefore, the whole working of parliamentary institutions 
has undergone a change. To sustain the government in 
its colossal task, new offices have been created, with 
ministers to conduct special departments of the military 
service. A war cabinet of four members, some of them 
without departmental duties, has been set up. What its 
functions really are, how great is its influence in policy and 
administration, cannot yet be accurately stated. Nor for our 
present purpose is it needful to attempt to do so; for these 
are not normal times, and the object of this book is to de- 
scribe the regular, the habitual, the natural working of the 
English form of government, and that is bound up with the 
interaction of the political parties and of their leaders on the 
two front benches. When the war is over, the currents of 
public life will return to peaceful channels; not, indeed, 
to precisely the same condition as before the war — the shock 
has been too great for that — but to a normal political 
activity of some kind. Parties may well be formed on a new 
basis, with new fines of cleavage, but there is no reason to 
suppose that they will permanently disappear; and, there- 
fore, the value of a study of the working of parties under the 
English parliamentary system permanently endures. 

63 



64 GREATER EUROPEAN GOVERNMENTS 

Parties in Modern Government 

Experience has shown that democracy in a great country, 
where the number of voters is necessarily large, involves 
the existence of political parties; and it would not be hard 
to demonstrate that this must in the nature of things be 
the case. 

But if political parties have become well-nigh universal 
at the present time, they are comparatively new in their 
modern form. No one in the eighteenth century foresaw 
party government as it exists to-day, enfolding the whole 
surface of public life in its constant ebb and flow. The ex- 
pression, " His Majesty's Opposition," said to have been 
coined by John Cam Hobhouse before the Reform Bill, 1 
would not have been understood at an earlier period; and 
it embodies the greatest contribution of the nineteenth cen- 
tury to the art of government — that of a party out of 
power which is recognized as perfectly loyal to the institu- 
tions of the state, and ready at any moment to come into 
office without a shock to the political traditions of the 
nation. 

Party and the Parliamentary System 

In England the party system is no more in accord with 
the strictly legal institutions, with King, Lords and Com- 
mons, than it is elsewhere; but it is in absolute harmony 
with those conventions, which, although quite unknown to 
the law, make up the actual working constitution of the 
state. It is in harmony with them because they were created 
by the warfare of parties, were evolved out of party life. 
It is based upon party, and by the law of its nature tends to 
accentuate party. Ministers perceived that their security 

1 Cf. Review of his unpublished " Recollections of a Long Life," in the 
Edinburgh Review, April, 1871, p. 301. 



ENGLAND: PARTY 65 

depended upon standing together, presenting a united front, 
and prevailing upon their friends to do the same. The 
leaders of the Opposition learned also that their chance of 
attaining to power was improved by pursuing a similar 
course. In this way, two parties are arrayed against one 
another continually, while every member of Parliament 
finds himself powerfully drawn to enlist under one banner 
or the other, and follow it on all occasions. He cannot con- 
sider measures simply on their merits, but must take into 
account the ultimate effect of his vote. As soon as men 
recognize that the defeat of a government bill means a 
change of ministry, the pressure is great to sacrifice per- 
sonal opinions on that bill to the greater principles for 
which the party stands; and the more fully the system 
develops, the clearer becomes the incompatibility between 
voting as the member of Parliament pleases on particular 
measures, and maintaining in power the party he approves. 
In short, the action of the House of Commons has tended 
to become more and more party action, with the ministers, 
as we have already seen, gradually drawing the initiative 
in legislation, and the control over procedure, more and 
more into their own hands. In fact, so far as Parliament is 
concerned, the machinery of party and of government are 
not merely in accord; they are one and the same thing. 
The party cabal has become the Treasury Bench. The 
ministers are the party chiefs, selected not artificially but 
by natural prominence, and the majority in the House of 
Commons, which legislates, appropriates money, supervises 
and controls the administration, and sustains or discards 
ministers, is the party itself acting under the guidance of 
those chiefs. The parliamentary system, as it has grown 
up spontaneously in England, is in its origin and nature 
government by party, sanctioned and refined by custom. 



66 GREATER EUROPEAN GOVERNMENTS 

Party Votes in Parliament 

Since the cabinet may be overturned at any moment, so 
that its very life depends upon incessant warfare, it must 
try to keep its followers constantly in hand; and since every 
defeat, however trivial, even if not fatal, is damaging, it 
must try to prevent any hostile votes — an effort which 
explains in part the much larger average attendance at 
divisions to-day than in the first half of the last century. 
Thus from the side both of the private member and the 
responsible minister there is a pressure in the parliamentary 
system towards more strict party voting. A democracy 
prefers broad contrasts, sharply defined alternatives, clearly 
marked issues and the frank opposition of party leaders. 
It understands better the struggle between the two front 
benches than the particular bearing of the measures de- 
bated. Unless matters of local interest are involved — and 
these the English practice almost eliminates — a democ- 
racy is prone to support the party, with comparatively 
little regard for matters of detail. 

In Parliament contentious legislation is in ordinary times 
conducted in the main by one party and opposed by the 
other, and hence the proportion of party votes is nearly 
constant. In Congress this is by no means true, and the 
number of such votes depends largely upon the presence of 
some question on which the parties happen to be sharply 
divided. On other subjects party lines are less strictly 
drawn. In short, in England the parties frame the issues; 
in America at the present day the issues do not, indeed, make 
the parties, but determine the extent of their opposition to 
each other in matters of legislation. In general the statistics 
for Congress show that whereas during the middle of the 
last century the amount of party voting there was at least 



ENGLAND: PARTY 6j 

as great as in Parliament, and while in particular sessions 
the English maximum has been exceeded, yet on the aver- 
age, party lines are now drawn distinctly less often than 
in the House of Commons. 1 

It is often said that in State legislatures the boss, or the 
caucus, dictates the action of the party on pending meas- 
ures, and then carries it into effect by a party vote, so that 
legislation is really the work of the machine. That this is 
an error is proved by the statistics. It is not true, because 
in the first place the machine rarely controls more than a 
part of the members of the party, and in the second place 
the machine meddles little with general legislation. It 
knows that an attempt to dictate to its followers on such 
questions would only weaken its authority; and hence it 
confines its attention to the distribution of spoils, to laws 
that bear upon electoral machinery, and to such bills, public 
or private, as affect directly the persons from whom it draws 
its revenue. It has, indeed, been pointed out that the very 
position of the boss depends upon the fact that parties exist 
for public objects, while he exists for private ones ; 2 and 
this is so well recognized that great corporations desiring to 
obtain either selfish legislation, or protection against un- 
scrupulous attack, have subscribed impartially to the 
campaign funds of both political parties. That is the aspect 
of public life which provokes an outcry from reformers. 
Parties in America are not, as a rule, despotic on public 
questions, because they have little cohesion; but their 
influence, or rather the influence of the machine, or of the 
individual politician, is freely exerted in things quite apart 

1 For an elaborate collection of statistics, see the writer's tables in the 
Report of the American Historical Association for 1901, and for a brief sum- 
mary his Government of England, ii. 72-92. 

2 " The American Boss," by Judge Francis C. Lowell, in the Atlantic 
Monthly, September, 1900. 



68 GREATER EUROPEAN GOVERNMENTS 

from those issues of public policy which form the only 
rational ground for party activity. In short, the boss is 
not a prime minister who directs policy, but an electioneer- 
ing agent and a private bill and office broker. 

A comparison of England and America shows, therefore, 
that the influence of party upon legislation is, on the whole, 
much greater in England, but that it is more closely con- 
fined to public measures. 



CHAPTER IV 

ENGLAND: LOCAL GOVERNMENT 

The Areas of Local Government 

The whole country is divided into counties l and county 
boroughs, the larger towns being for administrative pur- 
poses counties by themselves. 2 Each of these divisions is 
governed by a single body called the council, composed of 
representatives popularly elected by wards, and of addi- 
tional members, called aldermen, chosen by the council 
itself. The details are slightly different in the counties and 
county boroughs, but the general principles are the same; 
and in the latter the county powers are simply vested in 
the same council that governs the borough in other respects. 
The county is subdivided into boroughs and urban and 
rural districts, each of which is governed by a council 

1 This is properly called the administrative county to distinguish it from 
the ancient county or county at large, from which it differs by the exclusion 
of the county boroughs, and by the changes in boundaries made in conse- 
quence of the Acts of 1888 and 1894. The county at large still exists for 
elections to Parliament, and in some cases for judicial purposes and for the 
militia, although as a general rule these last two matters follow the changes 
made in the administrative county. (51-52 Vic, c. 41, § 59.) There are in 
England and Wales only fifty-two counties at large, but in consequence of 
divisions for purposes of local government there are sixty-two administrative 
counties, only half a dozen of which now coincide in area with the counties 
at large. 

2 This privilege was intended for boroughs which had, or should there- 
after attain, a population of 50,000, although some smaller places were in- 
cluded in the list because they were already counties by themselves. (51-52 
Vic, c. 41, §§ 31, 54, and Sched. 3; cf. Wright and Hobhouse, Local Gov- 
ernment, 2d ed., pp. 24-26.) 

6q 



70 GREATER EUROPEAN GOVERNMENTS 

formed on the same plan as a county council, save that in 
the district councils there are no additional members, or 
aldermen, elected by the council itself. 1 The functions of 
these councils differ very much, those of the boroughs being 
the most, and those of the rural districts the least, exten- 
sive. For that very reason the boroughs and urban dis- 
tricts, and of course the county boroughs, although usually 
divided into wards for electoral purposes, can hardly be 
said to be subdivided for local government, the powers of 
urban parishes being insignificant. The rural districts, 
on the other hand, are divided into parishes which possess 
real functions, and were intended, at least, to take an active 
part in local administration; those with more than three 
hundred inhabitants having elected councils, and the rest 
transacting their business in mass meeting. 2 

The metropolis does not fall into this system of local 
government, but is organized on a plan of its own. The 
City of London, with its ancient limits, retains its old insti- 
tutions, independently of the vast town that has grown up 
around it; while the rest of the metropolitan area is under 
a county council, created at the same time, and on the same 
general pattern, as other county councils. The territory 
over which it rules was divided in 1899 into boroughs, with 
councils to which the powers of the former parish vestries 
have been transferred; 3 and thus London is treated as a 
borough of the second degree. 

1 56-57 Vic, c. 73, §§ 23-24. 

2 In the past there have been many kinds of parishes (Odgers, pp. 44-48. 
Wright and Hobhouse, pp. 1-8. Redlich and Hirst, Local Government, ii. 161- 
170), but now there are only two of any real importance, the poor-law or 
civil, and the ecclesiastical, parish. By two distinct series of acts the par- 
ishes of both kinds have been so changed that in most cases the ecclesiastical 
no longer coincides with the civil parish. The former is under its own vestry 
and churchwardens, who have now no civil powers. 

3 62-63 Vic, c 14. 



ENGLAND: LOCAL GOVERNMENT J I 

Cutting athwart this checkerboard of local areas the only 
important cross division remaining, that of the poor-law 
unions, covers the whole country with another network of 
lines. The members of the board which rules the union 
are still called guardians, and in the urban parts of a union 
they are separately elected, while in the rural parts they 
are simply the members of the rural district council elected 
there. 

Described in this way the scheme of English local govern- 
ment may not seem complex, but in fact it is less simple 
than it appears, because there are in many places divers 
peculiarities and exceptions, under ancient local customs 
and special local acts, which mar the symmetry of the plan. 

Borough Councils 

All the larger boroughs, and many of the smaller ones, 
are divided into wards, among which the seats in the council 
are apportioned. 1 As a rule — although by no means an 
invariable one — each ward is represented by three council- 
lors; and since they serve for three years, one of them re- 
tiring each year, the voters in a ward are usually called upon 
to elect only a single representative at the annual election. 
As in the case of Parliament, no poll is held unless more 
candidates are nominated than there are seats to be filled, 
and hence an opponent does not come forward unless he 
means to conduct a serious fight. The result is that in many 
a ward there is no contest, especially when the sitting mem- 
ber is ready to stand again. The number of uncontested 
seats varies, of course, a great deal. In one hundred and 
three boroughs and urban districts, large and small, taken 

1 The division into wards is based upon local taxation as well as popula- 
tion, and thus a certain weight is given to property. 45-46 Vic, c. 50, § 30 
(10). For the relations of population and property in the wards of Glasgow 
see Bell and Pa ton, Glasgow, p. 63. 



72 GREATER EUROPEAN GOVERNMENTS 

at random at the elections of 1899, decidedly less than half 
the seats in the aggregate were contested, while in thirteen 
of these places there was not a single contest. 

The borough council is not composed of representative 
members alone. It consists of the mayor, aldermen, and 
councillors sitting together as a single body. The aldermen 
are in number one third as many as the councillors; but 
although selected in a different way, and holding office for 
a different term, they are from a legal point of view simply 
members of the council like the rest. They are chosen for 
six years instead of three, one half of them going out every 
third year. They are elected by the council itself on No- 
vember 9, that is immediately after one third of the council 
has been renewed by the popular election of that year. 1 

While the aldermen have no important legal powers not 
enjoyed by the other members of the council, their influence 
is much greater, for they are the members who have served 
longest, and they hold most of the chairmanships upon the 
committees. In some towns, indeed, these posts are re- 
served exclusively for them, and everywhere one is struck 
by the fact that they are, on the whole, the leading figures in 
the council. The influence naturally conceded in a body 
of this kind to seniority and experience is enhanced in an 
English borough council by the fact that as a general rule, 
apart from a change of party in the council, retiring alder- 
men are reelected so long as they are willing to serve. 2 

1 Formerly, the aldermen voted in the election for aldermen, and this 
gave them in some cases a power to retain the majority of the council in 
the hands of their own political party after the majority of popularly chosen 
councillors had passed to the other party. In 19 10 their right to vote for 
aldermen was taken away by statute. (10 Edw. VII and 1 Geo. V, c. 19.) 

2 It is not an invariable rule. In Carlisle and Oldham, for example, an 
alderman is not reelected, on the principle that after serving his term of 
six years he ought to go back to his constituents for approval. But this 
is not considered by most observers to work well. 



ENGLAND: LOCAL GOVERNMENT 73 

This may not be in accord with the strict theory of repre- 
sentative government, but it has substantial advantages. 
It insures the presence in the governing body of men of long 
experience; and in fact it is not uncommon to find in a 
town council a few men who have served there continu- 
ously for twenty-five or thirty years, or even more. 

The Mayor 

The first business of the council at the meeting on the 
ninth of November is the election of a mayor, for the term 
of one year, from among the aldermen, councillors or per- 
sons qualified to be such. The mayor is a justice of the 
peace for the borough during his term of office, and for one 
year thereafter; but this is the only duty of importance 
that he performs apart from the council, of which he is 
both a member and the chairman. 

The Permanent Officials 

Behind the council and its committees, little seen by the 
public, but carrying the main burden of the public work, 
stand the permanent officials. When a vacancy occurs in 
the position of a town clerk or borough surveyor, for exam- 
ple, it is the general, although not invariable, habit to ad- 
vertise for a successor; and this is sometimes done even in 
cases where the councillors have really made up their minds 
to promote a subordinate already in the service of the 
borough. If a promotion of that kind is not made, and a 
clerk, engineer or other officer is appointed from outside, a 
man is usually selected who is employed in a similar public 
office elsewhere — either at the head of a department in a 
smaller place, or as a subordinate in a larger one. In this 
way municipal service tends to become a career by itself. 
A town clerk, for example, must always be a solicitor or 



74 GREATER EUROPEAN GOVERNMENTS 

barrister by profession, and occasionally a person in private 
practice is selected, but it is far more common to take a man 
who is already engaged in municipal work, and has there- 
fore had experience in the particular class of duties he is 
called upon to perform. In short, a town clerk usually 
enters the public service as a young man in a subordinate 
capacity, often as an articled clerk in a town clerk's office, 
and works his way up. It is rare that a solicitor is put into 
one of the higher posts in a borough from private life, and 
rarer still that a town clerk, or one of his assistants, goes 
back into private practice. The same thing is true of the 
engineers. It is not common to appoint a borough engineer 
on account of his reputation in general practice; or for a 
man who has seen service as an engineer of a town to go back 
into any other kind of work. In short, municipal engineer- 
ing tends to become a distinct profession. The officials 
abstain wholly from party politics, and although party 
motives may have affected the choice of a man, they never 
lead to his discharge if the majority in the council happens 
to change. In short, there are no spoils, or rather nothing 
of the practice that renders spoils a blight — that is, the 
removal of officeholders to make room for partisans. So 
long as an English borough official does his work well, he is 
retained regardless of party. 

Their Position 

It is often said that the council determines the general 
policy to be pursued, while the officials carry it out in de- 
tail, 1 and this describes, no doubt, the legal situation, but 

1 Redlich and Hirst {Local Government in England, i. 350-351), who have 
dwelt upon the importance of the officials more than any one else, repeat this 
statement in a slightly different form; and although they point out that it is 
not accurate, they seem to regard it as more nearly so than it appears to 
the writer. 



ENGLAND: LOCAL GOVERNMENT 75 

it is very far from expressing the actual influence of the 
officials upon the administration of the borough. In the 
first place no sharp line can be drawn between policy and 
details; and then an official who has in any degree the con- 
fidence of his committee will always influence them very 
largely about the general policy of his department. His 
position is like that of a permanent undersecretary of state. 
The members of the council, like the ministers, assume the 
responsibility for what is done. They are expected to 
shield the official from blame, and naturally take the credit 
for good management. He enjoys, therefore, with a large 
share of real power, freedom from attack, and a permanent 
tenure of office in consideration of self-effacement. It is 
not inaccurate to say that in general the chairman of a com- 
mittee plays a part not unlike that of a minister, with the 
official as his permanent undersecretary. The official im- 
presses his views on the chairman, who in turn impresses 
them on the committee, and this body carries them through 
the council. Thus the motive force behind the council is 
to be found mainly in the permanent officials, whose power, 
being unseen, is little understood by the public. In fact 
the writer, after studying a number of English cities, was 
led to imagine that the excellence of municipal government 
was very roughly proportional to the influence of the per- 
manent officials. That influence, be it observed, is by no 
means confined to matters where purely expert knowledge 
is required. A very small fraction of the time of a town 
clerk is devoted to questions of law, or of a surveyor to engi- 
neering problems. By far the greater part of their work 
is administrative, and it is not too much to say that the 
administration of a typical English borough is conducted 
by the officials. 



76 GREATER EUROPEAN GOVERNMENTS 

Benefits of their Influence 

The merits of English municipal government have been 
commonly attributed to the concentration of power in the 
hands of the council, but in its essence the system is virtu- 
ally that of management by committees; and such a sys- 
tem, by its very nature removed in details from public 
observation, is singularly open to abuse. There is probably 
no method of government that in bad hands lends itself 
more readily to inefficiency and corruption than adminis- 
tration by committees, and none that is less sensitive to 
healthy criticism. But it works very well where, as in the 
English borough councils, the committee acts under the 
guidance of upright and capable experts. Under these 
circumstances the officials, who really administer the city, 
find support, protection, and permanence of tenure; while 
at the same time they are prevented from becoming bureau- 
cratic, and are kept in touch with public opinion. 



CHAPTER V 

ENGLAND: THE EMPIRE 

The British Empire 

The dependencies of England are scattered over the whole 
face of the earth in almost every habitable latitude, while 
there are scarcely ten consecutive degrees of longitude in 
which she does not have a foothold. Including Egypt, her 
six most important possessions lie in rive different conti- 
nents with no means of communication between them but 
a long sea voyage. Outside of the British Isles with their 
hundred and twenty thousand square miles, she holds no 
land in Europe of other than a military significance; but she 
has nearly four millions of square miles in North America, 
as much more in Africa, 1 over three millions in Australasia, 
and nearly two millions in Asia, besides innumerable islands 
and small bits of coast dotting the map of the world. 

Proportion of Races 

The population of the empire is as diverse as its geog- 
raphy. Only a small fraction of it is of European origin, 
and that fraction is far smaller than it was a hundred and 
fifty years ago, for by the annexation of huge territories 
the number of Asiatics and Africans under British rule has 
been multiplied enormously, while the people of European 
race in the dependencies are only about four times as many 
as they were at that time. In fact, the ratio of the people 

1 Including Egypt and the Sudan; but not including the captured Ger- 
man colonies. 

77 



78 GREATER EUROPEAN GOVERNMENTS 

of European stock in the rest of the empire to those in the 
British Isles is little, if any, larger than it was in 1775. The 
revolt of the American colonies did not, as some people 
believed at the time, prevent England from building up a 
great empire, but it has so far prevented that empire from 
being in large part Anglo-Saxon. The British dominions, 
including Egypt and the Sudan, but not including the 
captured German colonies, contain a total population of 
about four hundred and fifty millions; of which the people 
of European descent number about sixty millions; the 
natives of India over two hundred and ninety-five millions; 
African races of all kinds, from Egypt to the Cape, some 
sixty- two millions; the rest being Chinese, Singalese, Ma- 
lays and aboriginal races of various kinds. 

Distribution of the European Elements 

Of the sixty millions of people of European stock, over 
forty-five millions live in the United Kingdom, and less 
than fifteen millions elsewhere. Nor are these last gaining 
at such a rate of speed as to make it probable that they will 
soon overtake the mother country. Moreover, the fifteen 
millions of European origin in the colonies are by no means 
wholly of British extraction. Apart from streams of foreign 
immigrants who will soon become intermingled with and 
assimilated by the people among whom they live, there are 
certain old stocks, original settlers or ancient inhabitants, 
like the French Canadians, the Cape Dutch and the Mal- 
tese, who have not lost their language or their traditions. 
They number some three millions, leaving not much more 
than a dozen millions of English-speaking subjects outside 
the British Isles. 



ENGLAND: THE EMPIRE 79 

Revenue 

Unlike the outlying portions of most of the great empires 
in the past, the dependencies of England are not tributaries. 
Normally each colony, whether self-governing or not, is 
self-supporting. It contributes nothing to the imperial 
treasury, and the mother country defrays no part of the 
cost of its administration. India, for example, maintains 
the British troops stationed there, and pays both the sal- 
aries of English officials in her service and their retiring 
pensions after they leave; but although this may be an 
advantage to England, the money is spent solely on the 
government of India and in principle at least for her benefit. 
In time of peace, no more troops are, in fact, kept at the 
expense of the country than are deemed to be needed for 
its defence and for the preservation of order. Occasionally 
England advances money to one of the colonies to be repaid 
later, but she never extorts a loan from them. 

Of late years the self-governing colonies have, indeed, 
undertaken to maintain ships of war, but they are de- 
signed chiefly for the protection of their jown coasts, and 
are insignificant in comparison with the cost of the British 
navy. 

So far from regulating trade during the last half century 
for her own benefit, England in granting self-government to 
her larger white colonies allowed them to raise their revenues 
as they saw fit, and they have set up protective tariffs 
against her manufactures. Recently they have, indeed, 
given a preference in rates to English goods, although some- 
times merely by raising their duties still more against other 
nations. The profit that England derives from her depend- 
encies does not come in the form of tribute, but of enlarged 
opportunities for her citizens. Much discussion has taken 



80 GREATER EUROPEAN GOVERNMENTS 

place on the question whether trade follows the flag, 1 but 
whether it does so directly or not, there can be little doubt 
that the control of an immense empire has had an indirect 
effect in the past. 

Forms of Colonial Government 

There are now three distinct types of colonial government 
to be found in the British Empire: those of the self-govern- 
ing colonies, the crown colonies, and what for want of a 
better generic term may be called the protectorates, that 
is, the states that are administered more or less completely 
by England through the form of advice to the native rulers. 
This is not wholly the official classification, because some 
of the dependencies are not under the Colonial Office, and 
hence are regarded as distinct from the rest. India, for 
example, being in charge of the India Office, is not called a 
colony, and yet the method of administration is essentially 
similar to that of a crown colony so far as the connection 
with the parent state is concerned. Egypt, also, is not 
classed as a colony at all, because nominally not a British 
possession, and practically administered by the Foreign 
Office. 2 But if we disregard the question from which corner 
of the great building on Downing Street a dependency is 
ruled, and look merely to the actual forms of government, 
we find that they fall very comfortably under one or other 
of these three heads. 

The Self -Governing Colonies 

Before the eighteenth century was far advanced a single 
type of government had become prevalent in most of the 

1 There is an interesting study of the question in Alleyne Ireland's Tropi- 
cal Colonisation. 

2 So the African protectorates, ruled under the Foreign Jurisdiction Acts, 
are classed here as crown colonies. 



ENGLAND: THE EMPIRE 8l 

important British colonies, both on the mainland of North 
America and in the West Indies. It was that of a governor 
appointed by the crown, and a legislature with a popular 
branch elected by the inhabitants of the colony and pos- 
sessing the power of the purse. For any people with English 
political traditions that was the natural form to adopt. It 
is the type followed by the United States for the government 
of her territories. As a temporary expedient, while a ter- 
ritory is too thinly settled to be admitted to statehood, the 
plan has worked well in the American republic; but as a 
permanent system in a community mature enough to have 
a will of its own the plan has grave defects. It involves 
dissensions between the ruling powers with no arbiter to 
whom both feel bound to submit; and in fact the history 
of the British colonies in the eighteenth century is full of 
bickerings between the governor and the legislature. 1 These 
disputes harrowed the ground in which the seeds of the 
American revolution were planted. 

The first serious attempt to study the effects of this form 
of colonial government was made after the Canadian Re- 
bellion of 1837. Lord Durham was sent out as High Com- 
missioner, and in his famous report he pointed out the evils 
of the plan, suggesting as a remedy that the governor of 
each province should entrust the administration to such 
men as can command a majority in the Assembly, and 
thus establish ministerial responsibility on the English 
pattern. 

A decade later, his suggestion was carried out by Lord 
Elgin who became Governor of Canada in 1847 '■> an d within 
ten years it was applied to the principal Australian colonies 
also. In fact it has been extended to every British colony 

1 Cf . Greene, The Provincial Governor; Egerton, Short History of British 
Colonial Policy. 



82 GREATER EUROPEAN GOVERNMENTS 

as soon as it contained a sufficiently large population of 
European stock. 

Colonial Federations 

A sequel to the grant of responsible ministries has been 
the formation of confederations in the three great groups of 
self-governing colonies. In each case the initiative has come 
from the colonies themselves, the action of the mother 
country being almost entirely confined to embodying in an 
Act of Parliament the plans already agreed upon by them. 
The British North American Act of 1867 1 brought together 
in the Dominion of Canada the provinces of Ontario, 
Quebec, Nova Scotia, and New Brunswick, and later all 
the other habitable parts of British North America joined 
the union, except Newfoundland and its dependency Lab- 
rador. A generation later all the Australasian colonies, 
except New Zealand, were brought together by the Common- 
wealth of Australia Act of 1900; 2 and finally the South 
African colonies were united under a federal constitution 
in 1909. 3 These federations differ a good deal in details, 
but each of them has a federal ministry responsible to a 
federal parliament, and provincial ministries responsible to 
assemblies for the province or state. 

The Relation to England 

The organization and internal government of these con- 
federations do not fall within the scope of this book; but 
it may be observed that their formation has not been with- 
out effect on the relation of the colonies to the mother 
country. Instead of dealing with a dozen and a half com- 
munities, many of them very small, while the largest has 
scarcely more than two million people, she deals mainly 

1 30-31 Vic, c. 3. 2 63-64 Vic, c 12. 3 9 Edw. VII, c 9. 



ENGLAND: THE EMPIRE 83 

with three federations, one of which contains four and a half 
and another over seven million inhabitants. She comes 
into contact with national instead of provincial opinion, 
and this of itself tends to lessen the part she plays in their 
domestic affairs. 

The influence of England over her self-governing colonies 
is now exerted through four channels: the royal governor, 
the right to veto legislation, the control of foreign relations, 
and the appeals from the colonial courts to the Judicial 
Committee of the Privy Council. 

The governor in a self-governing colony has two functions. 
He is an officer of the mother country appointed to guard 
her rights and exercise a great part of the control she still 
retains over the colony; and he is also the chief magistrate 
of the colony for its own internal government. According 
to this distinction it is commonly said that in matters that 
affect other parts of the empire or foreign countries he must 
use his own discretion, or seek instructions from the Secre- 
tary of State in England, while in matters that affect only 
the internal affairs of the colony he must follow the advice 
of his ministers there. The first part of the statement is 
not, however, perfectly accurate. A protective tariff, for 
example, affects very seriously both the rest of the empire 
and foreign nations, yet it is well settled that the governor 
cannot on that account refuse his assent to it. His position 
as the representative of England is sometimes a delicate 
one, and his chief usefulness lies rather in his moral influence 
than in his legal authority. 

The veto is not, as in England, virtually obsolete, for some 
acts passed by the self-governing colonies have usually been 
killed in this way every year. 1 Nor is it used only to defeat 

1 Com. Papers, 1901, xlvi. 7, gives a list of recent cases where this has 
occurred. 



84 GREATER EUROPEAN GOVERNMENTS 

measures prejudicial to other parts of the empire or to 
foreign countries, although that is, of course, its main object 
at the present day. Not very long ago acts regulating elec- 
tions and the franchise in Newfoundland and Natal were 
refused assent. But it may be observed that the extent 
to which the veto has been used for bills relating chiefly to 
domestic affairs is inversely proportional to the size of the 
colony. 

The actual relation of England to the self-governing 
colonies may not be easy to classify in the terms used by 
publicists when they discuss sovereignty; but there is no 
doubt that as regards foreign nations the British Empire 
has been treated as a single power, and that power is Eng- 
land. In order, however, to satisfy colonial opinion it is the 
habit when a really important question arises — between 
Canada and the United States, for example — to appoint 
a commission containing colonial members. But the situa- 
tion is not wholly comfortable, and would be much more 
difficult were it not that the remoteness of these colonies 
saves them to a great extent from complications with other 
countries. If the grant of self-government has reduced 
greatly the control of England over the colonies inhabited 
by people of her own race, it has also removed almost 
altogether the friction that existed formerly and has al- 
lowed a strong imperial sentiment to grow up. The diminu- 
tion of power has been followed by an increase of loyalty. 
Other conditions have promoted this feeling, not least among 
them a change of attitude toward these colonies in England 
itself. One has heard nothing for many years on either side 
of the ocean about eventual independence. In its place 
one finds speculation about possible means of drawing the 
parts of the empire closer together. 



ENGLAND: THE EMPIRE 85 

The Crown Colonies 

A colony can be governed by its own people, or it can be 
governed by the mother country, but under ordinary con- 
ditions it cannot be governed successfully by a combination 
of the two, and hence the English dominions over sea are 
sharply separated into two groups: one that of the self- 
governing colonies, which have tended towards more and 
more complete control of their own affairs; the other that 
of the crown colonies, which have tended to lose the rem- 
nants of self-government that they possessed. Of the old 
type, with an assembly wholly elected, and a governor 
whose ministers are not responsible to the legislature, only 
three examples remain. They are Bermuda, Bahamas, and 
Barbados, the first and last having the oldest representative 
bodies in the British Empire except the House of Commons. 
The peculiar conditions in those islands, that have made 
possible the survival of institutions which have perished 
elsewhere, need not be examined in detail. Suffice it to say 
that they are peculiar, although not the same in each case. 

The rest of the crown colonies may be divided into three 
classes. First, the Leeward Islands, British Guiana, Malta, 
Mauritius, and Fiji, where the legislative body includes 
elected members who are, however, in a minority. 1 Where 
the population contains any considerable number of Euro- 
peans, or other educated people, this has the advantage of 
bringing the governor and his advisers into official contact 

1 British Guiana has a curious constitution derived from the Dutch. In 
the Court of Policy, which deals with ordinary legislation, the government 
has a bare majority; but the Combined Court that levies the taxes is formed 
by adding other elected members. For the method of controlling this body, 
see Ireland, Tropical Colonisation, pp. 45-51, 65-66. 

Cyprus alone has a legislative body containing both elected and appointed 
members with the former in a majority. This is normally the case in Ja- 
maica also; but there the majority can be turned into a minority at any time. 



86 GREATER EUROPEAN GOVERNMENTS 

with an enlightened local opinion which, in the absence 
of violent dissensions, is likely to have great weight. The 
second class of crown colonies is the most numerous of all, 
and consists of those where the legislative body is wholly 
appointed. This is true, for example, of the remaining 
British possessions in the West Indies and Central America, 
of Ceylon and of most of the colonies on the tropical coasts 
of Africa. 1 It is almost a necessity where the proportion of 
European residents is minute, or where they do not truly 
represent the local industries. Finally, in purely military 
stations like Gibraltar and St. Helena, and in half explored 
tracts like some of those in the interior of Africa, the gov- 
ernor has no legislative council whatever. 

India 

The Governor-General, or Viceroy, of India and the Czar 
of Russia were sometimes said to be the two great autocrats 
of the modern world. But, save in the case of a man of 
rare capacity and force, an autocrat, especially if like the 
viceroy he comes for a few years to a strange land, must 
be largely under the influence of advisers who are thor- 
oughly familiar with the work to be done; and this is the 
more true when those advisers, including his own private 
secretary, belong to a great organization with a strong 
esprit de corps. The governors of Bombay and Madras, 
like the viceroy himself, are English noblemen appointed 
directly by the crown, but they must obey his orders, their 
legislative power is limited, and all laws made by them re- 
quire his consent. 2 Hence their authority is not very great 

1 In Hong Kong and the Straits Settlements the Legislative Councils 
are wholly appointed, but in each case a couple of members are nominated 
by the chambers of commerce or other bodies. 

2 Ilbert, The Government of India, pp. 190-191, 221-222, 225. 



ENGLAND: THE EMPIRE 87 

and they, too, are surrounded by members of the civil serv- 
ice. The lieutenant-governors, or chief commissioners, at 
the head of the other provinces, are appointed by the vice- 
roy, and are regularly selected from the civil service; for 
which, indeed, by far the greater part of the administrative 
and judicial posts of higher grade in India are reserved. 

The Civil Service of India 

Except for a number of seats in the high courts and in 
the councils of the various governors, and for special serv- 
ices, organized and recruited separately, like engineering, 
forestry, police, and education, it may be said that almost 
all the offices of government involving any serious responsi- 
bility are held by members of the civil service of India. 1 
From their ranks are taken the collector magistrates in 
the several districts, who carry on the actual government 
throughout the country, and have charge of almost every 
branch of the administration, ruling, on the average, over 
nearly a million of people apiece. 2 A few of the principal 
subordinates in the districts are also members of the serv- 
ice, the other offices, mainly of a lower grade, being rilled 
by natives of the country. Thus the government of India 
is really in the hands of about eleven hundred Englishmen, 
of whom a couple of hundred are military officers or uncove- 
nanted civilians, while all the rest belong to the great corps 
of the civil service. 3 Its members go to India at not over 
twenty-four years of age, and after spending twenty-five 
years there they are entitled to retire with a liberal pension. 
Such a body of men, drawn for the most part from one 

1 Ilbert, pp. 126-128, 238-240, 276-277; Lowell and Stephens, Colonial 
Civil Service, pp. 50-53. 

2 The corresponding officer in the non-regulation provinces is styled 
Deputy Commissioner. 

3 Lowell and Stephens, pp. 56-57. 



88 GREATER EUROPEAN GOVERNMENTS 

source, nurtured by the English universities, spending their 
vigorous years in a common and highly responsible work 
in an Oriental land, are well fitted to develop traditions 
without bureaucratic rigidity. They do not conceive of 
their mission as ruling India for the benefit of England, 
and, in fact, without recognizing any conflict of interest 
between the two, their first care is the welfare of India as 
they understand it. 

The Indian Councils Act of 1892, or rather the regula- 
tions made thereunder, introduced a trace of representation 
into the general government of India. They provided that 
in the legislative councils of the chief provincial governors 
a part of the members should be appointed on the nomina- 
tion of municipal and district councils, of landowners, man- 
ufacturers, and tradesmen; others being appointed by the 
governor " in such manner as shall in his opinion secure 
a fair representation of the different classes of the com- 
munity." Although the legislative councils so constituted 
have little actual power, they not only debate proposed 
changes in the laws, but can also discuss the annual financial 
statement, and ask questions after the manner practised in 
the House of Commons. All this gives serious native opinion 
some chance to make itself heard by the rulers, and provides 
a valuable means of obtaining information. 1 

India is not a Nation 

The people of India are not a nation, but a conglomerate 
of many different races and religions, often side by side in 
the same place yet unmixed and sharply separate. It is 
this, as Seeley pointed out in his " Expansion of England," 
that has enabled the British to conquer and hold the coun- 

1 The Indian Congress, of which we have heard so much of late years, is 
an unofficial body. 



ENGLAND: THE EMPIRE 89 

try. If the inhabitants should act together, and were agreed 
in wanting independence, they could get it. In short, if 
they were capable of national self-government, the Eng- 
lish would live on a volcano, and their occupation would 
be brief. The Mutiny was suppressed because it was not 
universal. The Sikhs helped to put down the Sepoys; and 
so long as large sections of the people distrust one another 
more than they do the English, disaffection has little chance 
of achieving any notable result. 

The Native States 

The whole of India is not under direct British adminis- 
tration. Scattered all over the peninsula are tracts of 
country under native rulers, although subject to the over- 
lordship of the English crown. Lee- Warner styles the re- 
lation one of subordinate union, and certainly it is very far 
from an international connection between sovereign states, 
because the government of India exercises in several ways 
a paramount authority, not only for its own security, but 
also for the protection of the native ruler's own subjects. 
Speaking generally, the native states are protected against 
both external foes and rebellion at home, and, on the other 
hand, their diplomatic intercourse with one another and 
with foreign powers is in the hands of the Indian govern- 
ment. They have military obligations, also, which vary a 
good deal according to the special treaties made with them. 
Quite apart from military necessities, moreover, they must 
permit the construction of roads, railways, telegraphs, and 
irrigation works within their limits. The instrument 
through which the control of the native states is carried on 
is the resident, whom the prince is bound to receive, and 
to whose advice he must listen. He need not always follow 
it, but the admonitions of the resident count for much in 



90 GREATER EUROPEAN GOVERNMENTS 

the long run. By pressure of this kind, and by interven- 
tion in flagrant cases, the bands of thugs, and barbarous 
customs like infanticide and suttee, have been abolished in 
the native states, which have indeed tended in many ways 
to follow at a distance the example of British India. 

Egypt 

The other recent example of preserving the local ruler 
and controlling him by means of an English adviser, that of 
Egypt, is better known. Although in theory the occupa- 
tion by England is still temporary, Egypt is really her 
permanent possession, the gateway to the East which she 
cannot surrender. Although the ministers of state are 
Egyptians, behind each of them stands, as adviser or under- 
secretary, a British officer whose suggestions he must obey; 
while above them all, as adviser to the Khedive, the Eng- 
lish Agent and Minister Plenipotentiary is the real ruler 
of the country. Considering the difficulties encountered, 
the various interests involved, and the temporary nature of 
the first occupation, the administration of Egypt must be 
regarded, in spite of criticisms of detail, as one of the most 
signal achievements of English skill in the management of 
dependent states. 

Imperial Federation 

No change of political sentiment in England within a 
generation has been more marked than that toward the 
colonies. The fatalistic indifference that was widespread 
fifty years ago has been replaced by an almost universal 
desire to draw closer the bonds that connect the mother 
country with her grown-up children, as orators are fond of 
calling them. What imperial federation means is, therefore, 
an important matter for consideration; and first it may be 
observed that it can apply only to the self-governing colo- 



ENGLAND: THE EMPIRE 91 

nies. Dependencies that do not govern themselves might 
be taxed for the support of general defence, but they can 
obviously take no part in the government of the empire. 
If they cannot rule themselves, they certainly cannot rule 
other people, and to go through the form of having them do 
so would be worse than illusory. If India, for example, or 
the West Indies, should appoint delegates to an imperial 
council, they would be merely agents of the English min- 
istry, and would reduce the representatives of the self- 
governing colonies to an insignificant fragment of the body. 
India and the crown colonies must continue to be ruled by 
England, or, what is probably less desirable, by the federa- 
tion as a whole, and they can take no real part in the united 
government. Nearly three hundred and seventy millions 
of British subjects can, therefore, have no active share in 
the federation, which would be practically confined to the 
United Kingdom with forty-five millions of people, and 
British North America, Australasia, and the Cape, with 
about fifteen millions among them. It would thus be a 
combination between one large state in Europe, and a num- 
ber of small ones at great distances, containing in all only 
about one third of her population. These conditions must 
be borne in mind in discussing the possible forms of closer 
union; for while the ratio of inhabitants in different parts 
of the empire will, no doubt, change, a long time must 
elapse, as already observed, before the population of all 
self-governing colonies added together can equal that of 
the British Isles. 

As in the classic case of the Greeks, the tie that binds the 
self-governing colonies to the parent state is based mainly 
upon sentiment. It is fortified, also, by common citizen- 
ship, and by a naval protection on the part of England to 
which the colonies make only a trifling contribution. The 



92 GREATER EUROPEAN GOVERNMENTS 

granting of responsible government was probably the only 
course that could have been pursued at the time, but al- 
though it did not lead, as some men then predicted, to sepa- 
ration, it was certainly not a step toward federal union. It 
placed the colonies in a position with which they do not 
seem to be dissatisfied. 1 They are substantially free to 
manage their own affairs as they please, while on foreign 
matters that affect them, their opinions have great weight, 
and in time of peace they have the protection of England's 
name and navy almost without expense. The only im- 
portant steps towards a closer political connection have 
hitherto been a series of consultations with the colonial 
premiers in London. But the vigorous and effective part 
voluntarily taken by the colonies in this war has made it 
clear that they must hereafter have a voice, at least, in the 
foreign relations of the Empire. How that voice shall be 
uttered, and what forms a closer connection will take, are 
problems which British and colonial statesmen must 
shortly face; but they are far from simple, and their solu- 
tion is not easy to foresee. 

1 Bernard Holland, in his Imperium et Libertas (pp. 297-298), quotes 
figures compiled by the Imperial Federation Committee in 1899 to show that 
the self-governing colonies, with close upon one third of the population of the 
United Kingdom, and nearly one half as much revenue, contributed less than 
one hundredth of the cost of naval defence. According to the figures com- 
piled for the Colonial Conference of 1902, the average naval expenditure per 
head of population in the self-governing colonies was 4^., while for the United 
Kingdom it was 15s. id. In the same way the military expenditure per head 
was 2s. $d. against 14s. if^. Com. Papers, 1902, lxvi. 451, p. 42. 



CHAPTER VI 

FRANCE: INSTITUTIONS 

In order to understand the government of a country it is 
not enough to know the bare structure of its institutions. 
It is necessary to follow the course of politics; to inquire 
how far the various public bodies exercise the authority 
legally vested in them; and to try to discover the real 
sources of power. It is necessary, in short, to study the 
actual working of the system; and although this depends 
chiefly upon the character, the habits, and the traditions 
of the people, it is also influenced in no small measure by 
details — like the method of voting, the procedure in the 
legislative chambers, and other matters — that are too often 
overlooked on account of their apparent insignificance. 
Now in several of the states on the continent of Europe 
the main features of representative government have been 
copied directly or indirectly from English models, while 
the details have grown up of themselves, or are a survival 
from earlier tradition. It is not surprising, therefore, that 
the two are more or less inconsistent with each other, and 
that this want of harmony has had a pronounced effect on 
public life. 

Origin of Parliamentary Government 

The Middle Ages gave birth to two political ideas. The 
first of these was a division of the people into separate 
classes or estates, each of which had independent political 
functions of its own. The second was representative govern- 
ment, or the election — by those estates whose members 



94 GREATER EUROPEAN GOVERNMENTS 

were too numerous to assemble in a body — of deputies 
authorized to meet together and act for the whole estate. 
The number of these estates, and the number of separate 
chambers in which their representatives sat, varied in the 
different countries of Europe; 1 but it so happened that in 
England all the political power of the estates became in 
time vested in two chambers. 2 One of them, the House of 
Lords, contained the whole body of peers, who were the 
successors of the great feudal vassals of the crown; while 
the other, the House of Commons, was composed of the 
deputies from the towns and counties, who had gradually 
consolidated into a single house, and might be said to rep- 
resent all the people who were not peers. 

By degrees the House of Commons acquired the right of 
originating all bills for raising or spending money, and 
hence its support became essential to the crown. But its 
members were self-reliant, and on the whole less open to 
court influence than the peers. They felt under no obliga- 
tion to support the policy of the government, or to vote an 
appropriation unless they understood and approved the 
purpose for which it was to be used ; and King William III, 
during his wars with France, found them by no means as 
easy to manage as he could wish. Hitherto his ministers 
had been selected from both political parties, and hence 
were not in harmony with each other, and were unable to 
exert an effective influence in Parliament; but between 
1693 and 1696 he dismissed the Tories, and confided all the 

1 Thus in France, and in most continental countries, there were three, 
while in Sweden there were four: the clergy, the nobles, the cities, and the 
peasants. The existence of only two Houses in England might almost be 
called an accident. (Cf . Freeman, Growth of the English Constitution, p. 93.) 

2 In 1664 Convocation, which was the ecclesiastical chamber, discon- 
tinued the practice of voting separate taxes on the clergy, and thus the 
clergy definitely ceased to be an estate of the realm. (See Hallam, Const . 
Hist, of England, ch. xvi.) 



FRANCE: INSTITUTIONS 95 

great offices of state to the Whigs, who had a majority in 
the Commons. The result was that the House which had 
been turbulent became docile; and the ministers by win- 
ning its confidence were able to guide it, and obtain the 
appropriations that were required. This was the origin 
of the practice of selecting the ministers from the leaders 
of the majority in Parliament — a practice which at a 
later time crystallized into a principle of the British con- 
stitution. 1 But of course men who held the most important 
offices, and at the same time led the House of Commons, 
were certain not to be mere tools in the hands of the king. 
They were sure to try to carry out their own policy, and 
when the sceptre of William had passed into the hands of 
the first two Georges, who were foreigners and took little 
interest in English politics, the ministers exercised the royal 
power as they pleased, and became in fact the custodians 
of the prerogatives of the crown. The subordination of 
the king to his ministers is, indeed, the inevitable result 
of the system ; for so long as the latter retain their influence 
over the House, and can direct its votes, they can hold their 
offices and administer them according to their own views. 
If the king attempts to dismiss them they can block the 
wheels of government, by inducing Parliament to withhold 
supplies; and if, on the other hand, they cease to be the 
leaders of the House, and a different party with new leaders 
gets a majority, the king finds himself obliged to send for 
these and entrust the government to them. The system 
which had been devised in order that the king might con- 
trol the House of Commons became, therefore, the means by 
which the House of Commons, through its leaders, controlled 
the king, and thus all the power of the House of Commons 
and of the crown became vested in the same men, who 

1 Macaulay, History of England, ch. xx. 



96 GREATER EUROPEAN GOVERNMENTS 

guided legislation and took charge of the administration at 
the same time. 

The House of Lords, meanwhile, was losing ground. It 
had no right to initiate or amend money bills, and, what 
was far more important, it had no influence on the forma- 
tion or the policy of the cabinet. The ministers were, in- 
deed, often peers, but they were not selected because they 
belonged to the majority in the House of Lords, nor did 
they resign when that body voted against them. Like 
their colleagues from the other House, they represented 
the majority in the Commons, and were solidly in accord 
with it. The House of Lords, therefore, found itself con- 
fronted by the combined power of the crown and the 
House of Commons, and this it was unable to resist. In 
fact the power to create new peers furnished the crown, 
or rather the ministers acting in its name, with a weapon 
always ready to break an obstinate resistance; and at the 
time of the Reform Bill of 1832 a threat of this kind was 
enough to compel submission. The upper house thus 
gradually lost authority, and when it attempted to exert 
it again on the plea that it was reserving questions for the 
decision of the people, it was shorn of much of its power 
by the Act of 191 1. 

The ministers remain in office only so long as they con- 
tinue to be the leaders of the lower house and are able to 
control the majority. When this condition has changed, 
a vote is sometimes passed to the effect that the ministers 
have ceased to possess the confidence of the House; but 
such an express declaration is rarely used at the present 
day; and a hostile vote on any matter of considerable im- 
portance is treated as a proof that the government has no 
longer the support of a majority. After such a vote, there- 
fore, the ministers resign, and if there is a normal division 



FRANCE: INSTITUTIONS 97 

into two parties the crown sends for the leader of the Op- 
position, and entrusts him with the formation of a cabinet. 
The defeated ministers have, however, one other alterna- 
tive. If they think that the House of Commons has ceased 
to be in harmony with the opinion of the nation, they can 
dissolve Parliament in the name of the crown, and try the 
chance of a new election. Thus in the English parliamen- 
tary system the direction of the legislature, and the control 
of the executive, is in the hands of the leaders of the major- 
ity in the House of Commons. For their exercise of power 
these leaders are directly responsible to the House of Com- 
mons, which can call them to account at any time; while 
the House itself is responsible to the people, which gives 
its verdict whenever the end of the term of Parliament or 
a dissolution brings about a general election. 

Parliamentary Government on the Continent 

Turning now from the consideration of English forms of 
government to those in use on the Continent, we find that 
the main features of the British constitution have been very 
generally imitated. In fact, the plan of two chambers — 
one of which issues from an extended suffrage and has the 
primary control of the purse, and of a cabinet whose mem- 
bers appear in the chambers and are jointly responsible to 
the more popular one, resigning on an adverse vote — 
has spread widely over Europe. These features of the par- 
liamentary system are striking, and have become famous, 
while the procedure in the House of Commons, which en- 
ables the system to work smoothly, has attracted far less 
attention, and has been followed very little. This is pecul- 
iarly true of France, where the principle of cabinet respon- 
sibility has been adopted to the fullest extent, but where 
there exist at the same time several practices that help to 



98 GREATER EUROPEAN GOVERNMENTS 

twist parliamentary government out of the British form. 
More curious still is the fact that these very practices have 
been blindly copied by other countries which intended to 
imitate the English system. 

A description of the French government must begin with 
its structure, with the legal composition and powers of the 
different political bodies. This will occupy the present 
chapter. In the next, the actual working of the system 
will be considered, especially in regard to the character of 
political parties; and an attempt will be made to explain the 
peculiarities that are found by a reference to the condition 
of the people, and to those parts of the political machinery 
that seem to have a marked effect. In other words, we 
shall begin with the skeleton, and then take up the muscles 
and nerves. 

The French Constitution 

The first thing one looks for in a modern government is 
the constitution; but although the French Republic has 
a written constitution, it differs in two very important 
respects from those to which we are accustomed. It is not 
comprised in any one document, but in a series of distinct 
laws, and it contains few provisions limiting the functions 
of the different bodies, or prescribing fundamental rights 
which the state is enjoined to respect. This is a departure 
not only from American, but also from the earlier French 
usage, for previous constitutions in France have been long 
documents and have contained elaborate bills of rights; 
although the absence of practical guarantees has made their 
effectiveness depend upon the good pleasure of the govern- 
ment. The present constitution is very different, and 
barely provides for the organization of the powers of the 
state, without even speaking of such important matters as 
a yearly budget or the tenure of office of the judges. It does 



FRANCE: INSTITUTIONS 99 

little more than establish the main framework of the gov- 
ernment by declaring what the chief organs of public life 
shall be, leaving them almost entirely free to exercise their 
authority as they see fit. The reason for such a departure 
from French traditions is to be found in the circumstances 
of the case. The earlier constitutions in France were at- 
tempts to frame an ideal system, but the present one re- 
sulted from an immediate need of providing a regular 
government of some sort that could rule the country for 
the time, and it was drawn up by men who had no belief in 
its inherent perfection. To understand this it is necessary 
to glance at the history of the period. 

History of its Creation 

The rapid series of defeats suffered by the French armies 
at the hands of the Germans, in 1870, destroyed the totter- 
ing authority of the Emperor, and when the news of the 
surrender of Napoleon III at Sedan reached Paris an insur- 
rection broke out on the fourth of September. A republic 
was at once proclaimed ; but this was no time to debate 
plans for a constitution, and so long as the war lasted the 
country was ruled by the self-elected Government of the 
National Defense. When the war was over, a National 
Assembly with indefinite powers was chosen by universal 
suffrage. The member of this body who commanded the 
most general public confidence was Thiers, the historian, 
and former minister of Louis Philippe. To him the As- 
sembly entrusted the executive power, and in August, 187 1, 
it gave him the title of President, without, however, fixing 
any term for the duration of the office. Thiers was con- 
stantly urged to introduce the parliamentary system by 
allowing his ministers to assume the responsibility for his 
acts, but this he refused to do, saying that the position in 



IOO GREATER EUROPEAN GOVERNMENTS 

which it would place him, although perfectly consistent 
with the dignity of an hereditary king, was for him, a little 
bourgeois, entirely out of the question. 1 He held himself, 
however, personally responsible to the Assembly for the 
conduct of his government, took part in the debates on the 
measures he proposed, and declared that he was ready to 
resign at any time, if the majority wanted him to do so. 2 
This state of things continued for nearly two years, when a 
hostile vote forced Thiers to retire. His successor, Marshal 
MacMahon, was elected for a term of seven years, and as 
the new President was not a member of the Assembly, his 
cabinet became responsible in the parliamentary sense. 
But although the chief magistrate now held office for a 
fixed period, and was freed from the caprices of an uncer- 
tain majority, still there was no constitution and no per- 
manent organization of the government. The situation 
was, in fact, a provisional one, prolonged abnormally by 
the strange condition of politics. The monarchists formed 
a majority of the Assembly, but they were hopelessly di- 
vided into two sections — the Legitimists, whose candidate 
was the Comte de Chambord, and the Orleanists, who fol- 
lowed the Comte de Paris. At one moment it seemed not 
impossible that the Comte de Chambord might become 
king, and some of his supporters opened negotiations for the 
purpose; but these were brought to nothing by obstinacy 
of the prince himself, who was a true scion of his race, 
and would not yield one jot of his pretensions. He even 

1 The law of Aug. 31, 1871, declared that the President as well as the 
ministers should be responsible to the Assembly. See Dupriez, Les Ministres 
dans les Principaux Pays a" Europe et d'Amerique, ii. 320. 

2 The law of March 13, 1873, abolished the right of the President to take 
part in debate, and while allowing him to address the Assembly, ordered the 
sitting to be suspended immediately after his speech. This was, of course, an 
attempt to reduce the personal influence of Thiers. (Dupriez, ii. 321-322.) 



FRANCE: INSTITUTIONS IOI 

refused to accept the tricolor flag that means so much 
to Frenchmen, and clung doggedly to the ancient white 
standard of his house. 

The Constitutional Laws 

Under such circumstances a monarchy was out of the 
question, and so this assembly of monarchists at last set 
to work to organize a republic; or, rather, a sufficient num- 
ber of monarchists, feeling that a republic was, for the time 
at least, inevitable, joined with the minority to establish 
a government on the only basis possible. 1 But although 
the republican form was adopted, the institutions that 
were set up departed essentially from the ideas which the 
French had been accustomed to associate with that term. 
The present government, like all political systems that have 
been created suddenly and have proved lasting, was es- 
sentially a compromise. From the French republican 
principles there was borrowed, besides the name, little more 
than the election of the chief magistrate, while from the 
traditions of constitutional monarchy were taken the irre- 
sponsibility of the head of the state, and the existence of a 
second legislative chamber. 2 Now it was natural that no 
one should feel inclined to construct an ideal system on a 
hybrid foundation of this kind. Moreover none of the par- 
ties regarded the work of the Assembly as final, for the 
monarchists looked forward to a future restoration of the 

1 Very good brief descriptions of the formation of the Constitution may 
be found in Bozerian's Etude sur la Revision de la Constitution, and in Pro- 
fessor Currier's Constitutional and Organic Laws of France. The latter, 
published as a supplement to the Annals of the American Academy of Politi- 
cal Science (March, 1893), gives a translation into English of all these laws. 
See also an article by Saleilles on the " Development of the Present Con- 
stitution of France." {Ann. Amer. Acad, of Pol. Sci., July, 1895.) 

2 Lebon, Frankreich (in Marquardsen's Handbuch des Oefentlichen 
Rechts), p. 19. 



102 GREATER EUROPEAN GOVERNMENTS 

throne, while their adversaries hoped to place the Republic 
before long on a more secure and permanent footing. Hence 
the Assembly did no more than provide for the immediate 
organization of the government in as brief and practical a 
manner as possible. It passed three constitutional laws, 
as they are called, which are in the form of ordinary statutes, 
and very short and concise. One of them, that of February 
25, 1875, provides for the organization of the powers of the 
state. Another, that of February 24, 1875, deals in greater 
detail with the organization of the Senate. And the third, 
dated July 16, 1875, fixes the relations of the powers of the 
state among themselves. 

Amendments 

The provisional character of the constitution is clearly 
seen in the method of amendment. It has been the habit 
in France to make a sharp distinction between the constitu- 
ent and legislative powers, the former being withdrawn to 
a greater or less extent from the control of the Parliament. 
But in this instance both of the great parties wanted to 
facilitate changes in the fundamental laws, in order to be 
able to carry out their own plans whenever a favorable 
occasion might present itself. 1 A departure from tradition 
was therefore made, and it was provided that the constitu- 
tional laws could be amended by a National Assembly, 
or congress, composed of the two branches of Parliament 
sitting together, which should meet for this purpose when- 
ever both chambers on their own motion, or on that of the 
President of the Republic, declared the need of revision.2 

1 Cf. Borgeaud, Etablissement et Revision des Constitutions, pt. iii, liv. ii, 
ch. viii. 

2 Const. Law of Feb. 25, 1875, Art. 8. It is not provided whether the 
Chambers shall declare in general terms that there is a need of revision, or 
shall specify the revision to be made, and this point has given rise to lively 



FRANCE: INSTITUTIONS 103 

The constitutional laws have been twice amended in this 
way. On the first occasion (June 21, 1879), the provision 
making Versailles the capital was repealed, and thereupon 
a statute was passed transferring the seat of government 
to Paris. 1 On the second occasion (August 14, 1884), 
several amendments were made. Among these one of the 
most notable changed the provisions relating to the mode 
of electing senators, and another declared that the republi- 
can form of government cannot be made the subject of a pro- 
posal for revision — the object of the latter being to prevent 
the destruction of the Republic by constitutional means. 
The device of providing that a law shall never be repealed 
is an old one, but I am not aware that it has ever been of 
any avail. 

This method of amendment has virtually rendered the 
Parliament omnipotent; for, excepting the provision about 
changing the republican form of government, there is no 
restriction on its authority. The chambers cannot, it is 
true, pass an amendment to the constitutional laws in the 
form of an ordinary statute, but if they are agreed they can 
pass it by meeting as a National Assembly. The power of 
the chambers is therefore nearly as absolute as that of the 
British Parliament. 2 The principle, moreover, that the 
fundamental law cannot be changed by ordinary statute 
is devoid of legal sanction, for if the chambers should 
choose to pass an act of this kind, no court or official could 
legally prevent its application. 3 But while the constitution 

debates; but on the two occasions when a revision was actually under- 
taken, the Chambers passed identical resolutions specifying the articles to be 
amended. (Lebon, Frankreich, pp. 74, 75; Saleilles, op. cit., pp. 6, 7, 9.) 

1 Law of July 22, 1879. This act provides, however, that the National 
Assembly shall meet at Versailles. 

2 Cf. Saleilles, op. cit., p. 11. 

3 Cf. Laferriere, Traite de la Jurisdiction Administrative, i. 5. 



104 GREATER EUROPEAN GOVERNMENTS 

imposes no legal restraint on the Parliament, it would 
be a great mistake to suppose that it has no effect. On the 
contrary, it has such moral force that any attempt to pass 
a statute that clearly violated its terms would awake a 
strong repugnance; and indeed a suggestion by the president 
of one or other of the chambers that a bill would be un- 
constitutional has more than once sufficed to prevent its 
introduction. 1 On the other hand, the fact that formal 
amendments can be made only in joint session, and only 
after both chambers have resolved that there is a need of 
revision, has some influence in preventing changes in the 
text of the constitutional laws, because the Senate, being 
the more conservative body, and only half as large as the 
other House, is timid about going into joint session, not 
knowing what radical amendments may be proposed there, 
and fearing to be swamped by the votes of the deputies. 

Let us now examine the organs of the state in succession, 
taking up first the Parliament with its two branches, the 
Senate and the Chamber of Deputies; then turning to the 
President as the chief magistrate of the Republic, and 
finally passing to the ministers as the connecting link be- 
tween the Parliament and the President, and the control- 
ling factor in the machinery of the state. 

The Chamber of Deputies 

The composition of the Chamber of Deputies is left to 
ordinary legislation, except that the constitutional law of 
February 25, 1875, Art. 1, provides for its election by uni- 
versal suffrage. By statute the ballot is secret, and the 
franchise extends to all men over twenty-one years of age 
who have not been deprived of the right to vote in conse- 
quence of a conviction for crime, and who are not bank- 

1 Lebon, Frankreich, p. 23. 



FRANCE: INSTITUTIONS 105 

rupts, under guardianship, or in active military or naval 
service. 1 To be eligible a candidate must be twenty-five 
years old and not disqualified from being a voter. 2 Mem- 
bers of families that have ever reigned in France are, how- 
ever, excluded ; 3 and in order to prevent as far as possible 
the use of pressure the law forbids almost every state 
official to be a candidate in a district where his position 
might enable him to influence the election. 4 As a further 
safeguard against the power of the administration, which 
is justly dreaded by the French Liberals, it is provided that 
all public servants who receive salaries, except a few of the 
highest in rank, shall lose their offices if they accept an 
election to Parliament, and that a deputy who is appointed 
even to one of these highest offices, unless it be that of 
minister or undersecretary, shall lose his seat. 5 

The Chamber of Deputies is elected for four years, and 
consists at present of six hundred and two members; ten 
of the seats being distributed among the various colonies, 
and six allotted to Algiers, while the remaining deputies are 
chosen in France. 

Scrutin de Liste and Scrutin d ' Arrondissement 

The method of election has varied from time to time 
between that of single electoral districts, a system called 
the scrutin d'arrondissement, and that of the scrutin de liste, 
which consists in the choice of all the deputies from each de- 
partment on a general ticket; the difference being the same 

1 Arts. 1, 2, and 5 of the Law of Nov. 30, 1875. Poudra et Pierre, Droit 
Parlementaire, §§ 482-484, 498-514. 

2 Law of Nov. 30, 1875, Arts. 6, 7. 

3 Law of June 16, 1885, Art. 4. 

4 Law of Nov. 30, 1875, Art. 12. 

5 Id., Arts. 8, 9, and 11. A deputy appointed to one of these offices may, 
however, be reelected (Art. n). 



106 GREATER EUROPEAN GOVERNMENTS 

that exists between our method of electing congressmen 
each in a separate district, and our method of choosing 
presidential electors on a single ticket for the whole state. 
The scrutin d'arrondissement or single district system pre- 
vailed from 1876 to 1885, when the scrutin de liste was 
revived; * partly, no doubt, in order to swamp the reaction- 
ary minority, but also with the hope of withdrawing the 
deputies from the pressure of petty local interests, which 
had become lamentably strong, of getting a chamber of 
broader and more national views, and of forming a republi- 
can majority that would be more truly a great and united 
party. The experiment did not last long enough to produce 
any sensible effect of this kind; and indeed the change 
seems, on the whole, to have resulted in an increase of the 
power of the local politicians, who formed themselves into 
nominating and electoral committees for the department. 
At the general elections of 1885 the Reactionaries gained 
rather than lost seats in spite of the scrutin de liste; and 
the disgust of the Republicans with the device from which 
they had hoped so much was brought to its height two or 
three years later by General Boulanger. This singular 
man — who, after enjoying a marvelous popularity, became 
in a short time an object of contempt, if not of ridicule — had 
been minister of war in one of the recent republican cabi- 
nets. He was forced to resign on account of his enormous 
expenditure on the army, and the fear that he would plunge 
the nation into a war with Germany. He then posed as the 
savior of the country; and, being at the height of his repu- 
tation, he made use of the scrutin de liste to hold a plebiscite 
or popular vote of France piecemeal. Whenever a seat 
became vacant in a department he stood as a candidate; 
and if elected he held the seat only until a vacancy occurred 
1 Law of June 16, 1885. 



FRANCE: INSTITUTIONS IOJ 

in another department, when he resigned to appear as a 
candidate again. After doing this in several large depart- 
ments he was able to declare that a considerable part of 
the French people had pronounced themselves for him — 
a proceeding which would have been impossible if the 
deputies had been elected in five hundred and seventy-six 
separate districts. His success at the by-elections had so 
frightened the Republicans that they restored the scrutin 
d'arrondissement, or single electoral districts, before the 
general election of 1889 took place. 1 

The Chamber a Tumultuous Body 

Every large body of men, not under strict military dis- 
cipline, has lurking in it the traits of a mob, and is liable to 
occasional outbreaks when the spirit of disorder becomes 
epidemic; but the French Chamber of Deputies is espe- 
cially tumultuous, and, in times of great excitement, some- 
times breaks into a veritable uproar. Even the method of 
preserving order lacks the decorum and dignity that one 
expects in a legislative assembly. The President has power 
to call a refractory member to order and impose a penalty 
in case he persists; but instead of relying on this alone, he 
often tries to enforce silence by caustic remarks. The writer 
remembers being in the Chamber when M. Floquet was 
presiding — the same man who had fought a duel with 
General Boulanger and wounded him in the throat. A 

1 Law of Feb. 13, 1889. In order to frustrate more effectually Boulan- 
ger's scheme, a law of July 17, 1889, provided that no one should be candidate 
in more than one district. The meaning and effects of these laws is discussed 
by Saleilles (Ann. Am. Acad. Pol. Sci., July, 1895, pp. 19-37). A measure 
providing for the restoration of the scrutin de liste with an arrangement for 
proportional representation passed the Chamber of Deputies in 191 2, but 
was rejected by the Senate in the following March. For the arguments in 
its favor, see " Electoral Reform in France," by J. W. Garner, American 
Political Science Review, vii. 610-638 (Nov., 1913). 



108 GREATER EUROPEAN GOVERNMENTS 

deputy who had just been speaking kept interrupting the 
member who was addressing the Chamber, and when called 
to order made some remark about parliamentary practice. 
The President cried out, "It is not according to parlia- 
mentary practice for one man to speak all the time." " I 
am not speaking all the time," said the deputy. " At this 
moment you are overbearing everybody," answered the 
President. This incident is related, not as being unusual 
or humorous, but as a fair sample of what was constantly 
occurring in the Chamber. Even real sarcasm does not 
seem to be thought improper. Thus in a later debate a 
deputy, in the midst of an unusually long speech, was con- 
tinually interrupted, when the President, Floquet, ex- 
claimed, " Pray be silent, gentlemen. The member who 
is speaking has never before approached so near to the 
question." x These sallies from the chair are an old tradi- 
tion in France, although, of course, their use depends on 
the personal character of the President. One does not, for 
example, find them at all in the reports of debates during 
the time Casimir-Perier was presiding over the Chamber. 
When the confusion gets beyond all control, and the Presi- 
dent is at his wits' end, he puts on his hat; and, if this does 
not quell the disturbance, he suspends the sitting for an 
hour in order to give time for the excitement to subside. 

The Senate 

The French Senate consists of three hundred members; 
and, by the constitutional law of February 24, 1875, two 
hundred and twenty-five of these were to be elected for 
nine years by the departments, while seventy-five were ap- 
pointed for life by the same National Assembly that framed 
that law. The life senators were intended to be a perma- 
1 Journal Officiel of Nov. 18, 1892. 



FRANCE: INSTITUTIONS IO9 

nent feature of the Senate, and it was provided that when 
any one of them died his successor should be elected for life 
by the Senate itself. A few years later, however, the Re- 
publicans, thinking such an institution inconsistent with 
democracy, passed the amendment to the constitutional laws, 
to which a reference has already been made. 1 This, while 
leaving untouched the provisions relating to the existence 
and powers of the Senate, took away the constitutional 
character from those regulating the election of senators, 
which thus became subject to change by ordinary legisla- 
tion. A statute was then passed (December 9, 1884) pro- 
viding that as fast as the life senators died their seats should 
be distributed among the departments, so that at present 
all the senators are elected in the same way. There are 
eighty-six departments in France, and by the act the sena- 
tors are apportioned among them according to population. 
Life senatorships having been abolished, the number of 
seats belonging to a department varies from two up to ten, 
while the territory of Belfort, each of the three departments 
of Algiers, and several of the colonies, are represented by 
one senator apiece. 2 The senators so elected hold office for 
nine years, one third retiring every three years. 3 They are 
chosen in each department of France by an electoral college 
composed of the deputies, of the members of the general 
council, of the members of the councils of the arrondisse- 
ments, and of delegates chosen by the municipal councils of 
the communes. 4 Before 1884 each commune elected only 
one delegate, 5 but by the law of that year the number of 
delegates increases with the size of the communes, though 
much less than in proportion to the population. These 

1 Const. Law of Aug. 14, 1884. 3 Id., Art. 7. 

2 Law of Dec. 9, 1884, Art. 2. 4 Id., Art. 6. 
1 Const. Law of Feb. 24, 1875, Art. 4. 



IIO GREATER EUROPEAN GOVERNMENTS 

communal delegates form a large majority of the electoral 
college, and hence the Senate was called by Gambetta the 
Great Council of the Communes of France. 1 

A senator must be forty years old; and since the law of 
1884 the disqualifications for this office have been the same 
as for that of member of the Chamber of Deputies. 2 

Its Functions 

The legislative power of the Senate and the Chamber of 
Deputies is the same, except that financial bills must origi- 
nate in the latter; 3 but while it is admitted that the Senate 
may reduce proposals for taxes and appropriations, there 
is a dispute whether it can increase them or not, and debates 
on this point are constantly recurring. In practice the 
Chamber has sometimes accepted augmentations thus in- 
troduced, but more frequently the Senate has abandoned 
them. 4 The Senate has two peculiar functions. First, its 
consent is necessary for a dissolution of the Chamber of 
Deputies, 5 a provision designed as a safeguard against the 
President, for fear that he might dissolve the Chamber in 
order to attempt a coup d'etat during its absence; and, 
second, the President is authorized, with the approval of 
the Council of Ministers, to constitute the Senate a high 
court to try any one for an attempt on the safety of the 
state. 6 This power has been used more than once, notably 
in the case of General Boulanger, who failed to appear for 
trial, and was condemned in his absence. 

1 Saleilles, op. cit., p. 41. 

2 Law of Dec. 9, 1884, Arts. 4, 5, and Provisions Temporaires. Law of 
Dec. 26, 1887. Lebon, Frankreich, pp. 63, 64, 67. 

3 Const. Law of Feb. 24, 1875, Art. 8. 

4 Dupriez, ii. 430-432. 5 Const. Law of Feb. 25, 1875, Art. 5. 

6 Lebon, Frankreich, p. 73, Const. Laws of Feb. 24, 1875, Art. 9, and 
July 16, 1875, Art. 12. The procedure was regulated by a law of Aug. 10, 



FRANCE: INSTITUTIONS III 

Its Actual Influence 

With such an organization and powers, an American 
might suppose that the Senate would be a more influential 
body than the Chamber of Deputies; but in reality it is by 
far the weaker body of the two, although it contains at 
least as much political ability and experience as the other 
house, and, indeed, has as much dignity, and is composed 
of as impressive a group of men as can be found in any legis- 
lative chamber the world over. The fact is that according 
to the traditions of the parliamentary system the cabinet 
is responsible only to the more popular branch of the legis- 
lature, and in almost every instance where a cabinet in 
France has resigned on an adverse vote of the Senate, the 
vote was rather an excuse for the withdrawal of a discredited 
ministry than the cause of its resignation. 1 A case, which 
occurred during the year 1896, is the only one where the 
responsibility of the ministers to the Senate was fairly 
raised, and where anything like a real contest took place 

1889. By the Const. Law of July 16, 1875, Art. 12, the Chamber of Deputies 
can impeach the ministers, and in case of high treason the President of the 
Republic. The impeachments are tried by the Senate. For the interpreta- 
tion put upon this clause, see Lebon, Frankreich, pp. 55-58. 

1 Dupriez (ii. 453-454) mentions two such cases. One in 1876, when 
the cabinet, disliking a bill for an amnesty passed by the Chamber of Depu- 
ties, proposed in the Senate a compromise, which the latter, averse to any 
amnesty, rejected. The ministers thereupon resigned, but they had really 
been beaten in the Chamber of Deputies, and their only hope of restoring 
their prestige lay in forcing through the compromise. The other case was 
in 1890, when the Senate, by a vote condemning the economic policy of the 
government, brought about a cabinet crisis. But the ministry was already 
divided within itself, and had almost broken in pieces a few days before. 
There appears to have been a third instance of the same kind in 1883. In 
that case the Fallieres ministry resigned because the Senate rejected a bill 
on the expulsion of members of families that had reigned in France, but here 
again the cabinet was disunited and in a feeble condition before the vote in 
the Senate took place. (Journal Officiel, Feb. 18 and 19, 1883.) 



112 GREATER EUROPEAN GOVERNMENTS 

between the chambers. On this occasion the Senate did 
certainly force a united and vigorous cabinet to resign, but 
it was enabled to do so only because the majority in the 
Chamber of Deputies was highly precarious, for there can 
be no doubt that if the cabinet could have relied on the 
hearty support of the Chamber it would have defied the 
Senate as it had already done two months before. 1 It has 

1 The history of this case may be summarized as follows : The Chamber 
of Deputies when elected contained a decided majority of Conservative 
Republicans, and for two years the successive cabinets represented their 
views, but by degrees the party became disintegrated, and in October, 
1895, a Radical cabinet was formed, which succeeded in obtaining the 
support of a majority. Early in the new year the Minister of Justice, not 
being satisfied that the Juge d' 'Instruction, who was holding the inquest on 
the southern railroad frauds, was sufficiently zealous in discovering the 
offenders, took the case out of his hands and entrusted it to another magis- 
trate. On February 11, the Senate, which was strongly conservative, passed 
a vote censuring this act as an interference with the course of justice. Two 
days later, the Chamber of Deputies expressed its confidence in the govern- 
ment; whereupon the Senate, on February 15, repeated its former vote. 
On the 20th, the matter was again brought up in the Chamber of Deputies, 
and M. Bourgeois, the head of the cabinet, declared that he should not 
resign so long as he was upheld by the Chamber, which proceeded to re- 
affirm its vote of the week before. A number of the senators who had been 
opposed to the cabinet, finding that it would not yield, read in the Senate 
next day a declaration protesting against the refusal of the ministers to hold 
themselves responsible to the Senate as a violation of the Constitution, but 
saying that while as senators they reserved their constitutional right, they did 
not wish to suspend the legislative life of the country. The Senate thereupon 
adopted an orfler of the day approving this declaration, and thus virtually 
gave up for a time the attempt to make the ministers responsible to itself. 
{Journal Officiel, Feb. 12, 14, 16, 21, and 22, 1896.) 

A little later the cabinet brought forward a bill for a progressive income 
tax, and succeeded on March 26 in getting the Chamber to adopt an order 
of the day approving of the general principle involved. The order, however, 
which was somewhat equivocal, was only carried by sixteen votes, and 
more than half of the deputies were believed to be opposed in their hearts 
to the tax. The Senate thought its opportunity had come, and again passed 
a vote of lack of confidence in the ministry, this time on the subject of 
foreign affairs. (Journal Officiel, April 4.) The result was no better than 



FRANCE: INSTITUTIONS 113 

been only in very exceptional cases, that the upper house 
has upset the ministry. Moreover the question at issue in 
the struggle of 1896 was not whether the cabinet is re- 
sponsible to the Senate to the same extent that it is to the 
other chamber, but simply whether the Senate can insist on 
the removal of a ministry to which it is peculiarly hostile. 
No one has ever doubted that under ordinary circumstances 
the ministers are responsible only to the Chamber of Dep- 
uties. The majority in that body alone is considered in the 
formation of a cabinet, and an unfavorable vote there on any 
current matter of importance is followed by a change of 
ministers, while a similar vote in the Senate is not regarded 
as a reason for resignation. 1 

before, but the Senate felt the strength of its position, and was not to be 
ignored. On April 21, therefore, it took a bolder step by a resolution to 
postpone the vote on the credits asked for Madagascar " until it had before 
it a constitutional ministry having the confidence of the two Chambers." 
Instead of trying to continue the fight Bourgeois resigned, declaring to the 
Chamber of Deputies that as the representative of universal suffrage it 
ought to be supreme, but that, owing to the impossibility of insuring proper 
military service in Madagascar after the vote of the Senate, patriotism 
obliged him to withdraw. The Radicals in the Chamber succeeded in carry- 
ing a vote affirming once more the preponderance of the elect of universal 
suffrage, and urging the need of democratic reforms; but a few days later a 
purely Conservative cabinet presented itself to the Chamber, and obtained 
a vote of confidence by a majority of forty-three. {Journal Officiel, April 22, 
24, and May 1.) 

The outcome of the affair justified the belief that the Chamber would not 
have engaged in a prolonged struggle to support the cabinet; that while un- 
willing to turn the ministers out itself, it was not sorry to have the Senate 
do so. Had the deputies been so thoroughly in earnest as to force a dead- 
lock between the Chambers, the Senate could not have refused its consent 
to a dissolution, and would certainly have been obliged to give way if the 
elections had resulted in a victory for the cabinet. 

1 Since this was written the Briand ministry resigned on a vote in the 
Senate in 19 13. A bill to reestablish scrutin de liste with a provision for 
proportional representation was passed by the Chamber of Deputies in 
July, 191 2. It was not debated in the Senate for a long time, and not until 
after a change of ministry. The new Premier declared that he should treat 



114 GREATER EUROPEAN GOVERNMENTS 

As a rule the Senate does not decide the fate of the min- 
istries, and hence cannot control their policy. The result 
is that without sinking to the helplessness of the English 
House of Lords, it has become a body of secondary impor- 
tance. 1 At one time it stood very low in public esteem, on 
account of its origin; for it was created by the Reaction- 
aries in the National Assembly, and was regarded as a 
monarchical institution; and even after the greater part of 
its seats were occupied by Republicans, it was suspected 
of being only half-heartedly in favor of the republican form 
of government. Its condemnation of Boulanger increased 
its popularity by making it appear a real bulwark of the 
republic against the would-be dictator; but the prejudice 
against it has by no means disappeared, and the extreme 
Radicals have never ceased to demand its abolition, al- 
though conservative feeling in France will doubtless remain 
strong enough to prevent such a step. How great the influ- 
ence of the Senate will be in the future is not easy to fore- 
tell. Some people were of opinion that with life members 
gone, many of whom had been distinguished in letters, in 
science, or in war, it would lose a good deal of its prestige. 
To some extent this fear has been realized. But, on the 
other hand, men of mark are still elected, and now that 
the Senate is not afraid of being thought lukewarm or 
hostile to the republic, and does not feel its existence seri- 
ously threatened, it has acquired more boldness and energy. 2 

the adoption of the bill as a question of confidence, and when the Senate on 
March 18 voted against proportional representation, he resigned. His action 
caused surprise, and the reasons for it are somewhat obscure. 

1 In his Essays on Government (ch. i) the writer has tried to prove that 
this must necessarily be the condition of one of two chambers wherever the 
cabinet is responsible to the other; and that the cabinet cannot in the long 
run be responsible to both. 

2 Dupriez, ii. 382-383. The present position and the probable future 
of the Senate are discussed by Saleilles, op. cit. } pp. 37-52. 



FRANCE: INSTITUTIONS 115 

It is highly improbable, moreover, that it will become utterly 
powerless, so long as the deputies are divided into a number 
of political groups and the ministers are not able to speak 
with authority as the leaders of a great and united party. 

Although the Senate has little or no share in directing the 
policy of the cabinet, it must not be supposed that it is a 
useless body. On the contrary, it does very valuable work 
in correcting the over-hasty legislation of the other cham- 
ber, and in case of disagreement often has its own way or 
effects a compromise. 1 

The two chambers meeting in joint session form what is 
called the National Assembly, which, as we have seen, has 
power to revise the constitutional laws. It has one other 
function, that of electing the President of the Republic. 

The President of the Republic 

This officer is chosen for seven years, and is reeligible; 
the only limit on the choice of a candidate being found in 
the constitutional law of August 14, 1884, 2 which excludes 
all members of families that have ever reigned in France — 
a provision dictated by the fear that, like Napoleon III, a 
prince might use the presidency as a step to the throne. 
The President is at the head of a republic, but he lives and 
travels in a style that is almost regal, for the conception of 
a republic as severe, simple, and economical has changed 
very much in France since the Second Empire taught the 
nation extravagance. 3 

The duties of the President, like those of every chief 
magistrate, are manifold. He is the executive head of the 



1 Dupnez, 11. 413-415. 



2 Const. Law of Feb. 25, 1875, Art. 2. 

3 Cf. G. Channes, Nos Fautes, Letter of Jan., 1885; Theodore Stanton 
in the Arena. Oct., 1801. 



Il6 GREATER EUROPEAN GOVERNMENTS 

nation, and as such executes the laws, issues ordinances, 1 
and appoints all the officers of the government. 2 He has 
also certain functions of a legislative character, but, except 
for the right of initiative in legislation, these are not in fact 
very extensive. He has no veto upon the laws, and al- 
though he may require the chambers to reconsider a bill, 
the right has never been exercised. 3 With the consent of 
the Senate he can dissolve the Chamber of Deputies, 4 but 
this power has also fallen into disuse, because the members 
of his cabinet are very much under the control of the 
deputies, who dread the risk and expense of an election; 
and, in fact, a dissolution has not taken place since Presi- 
dent MacMahon's unsuccessful attempt to use it in 1877 as 
a means of getting a chamber in sympathy with his views. 
The President has power to make treaties; but treaties of 
peace, of commerce, those which burden the finances, affect 
the persons or property of French citizens in foreign coun- 
tries, or which change the territory of France (in other 
words, all the more important ones), require the ratification 
of the chambers. 5 A declaration of war also requires their 
consent; 6 but as a matter of fact the government managed 
to wage war in Tunis and Tonquin without any such con- 
sent, alleging at first that the affair was not a war, and 
afterwards defending itself on the ground that the Parlia- 
ment by voting credits had virtually sanctioned its course. 7 

1 For the nature of this power, see infra. 

2 Const. Law of Feb. 25, 1875, Art. 3. 

3 Const. Law of July 16, 1875, Art. 7; Dupriez, ii. 369. It is not likely 
to be used unless after the bill has passed the cabinet that favored it has 
resigned, and another hostile to it has come in. 

4 Const. Law of Feb. 25, 1875, Art. 5. 

5 Const. Law of July 16, 1875, Art. 8. 

6 Id., Art. 9. 

7 See Lebon, Frankreich, pp. 46, 47. 



FRANCE: INSTITUTIONS 117 

His Personal Authority 

Unlike the President of the United States, the French 
President is not free to use his powers according to his own 
judgment, for in order to make him independent of the fate 
of cabinets, and at the same time to prevent his personal 
power from becoming too great, the constitutional laws 
declare that he shall not be responsible for his official con- 
duct, except in case of high treason, and that all his acts of 
every kind, to be valid, must be countersigned by one of 
the ministers; 1 and thus, like the British monarch, he has 
been put under guardianship and can do no wrong. When, 
therefore, we speak of the powers of the President, it must 
be remembered that these are really exercised by the min- 
isters, who are responsible to the Chamber of Deputies. 
The President, indeed, is not usually present at the cabinet 
consultations (conseils de cabinet) in which the real policy 
of the government is discussed, and as a rule he presides 
only over the formal meetings (conseils des ministres) held 
for certain purposes specified by law. 2 He has power, it is 
true, to select the ministers, and in this matter he can use 
his own discretion to some extent, but in fact he generally 
entrusts some one with the formation of a cabinet, and 
appoints the ministers this man suggests. 3 His duty in these 
cases is not, however, as simple as that of the English King, 
because, for reasons that will be discussed in the next chap- 
ter, there is usually on the fall of a cabinet no leader of a 
victorious opposition to whom he can turn. A good deal 
of tact and skill is sometimes required at cabinet crises, and 

1 Const. Law of Feb. 25, 1875, Arts. 3 and 6. 

2 Lebon, Frankreich, p. 53; Dupriez, ii. 350-351 and 367-368, states that 
the President is often present when important matters are discussed, but 
cannot influence the decision. 

3 Dupriez, ii. 340. 



Il8 GREATER EUROPEAN GOVERNMENTS 

it is said that on one occasion the formation of a ministry- 
was due to the personal influence of President Carnot. 1 

Sir Henry Maine makes merry over the exalted office and 
lack of power of the President. " There is/' he says, " no 
living functionary who occupies a more pitiable position 
than a French President. The old kings of France reigned 
and governed. The Constitutional King, according to M. 
Thiers, reigns, but does not govern. The President of the 
United States governs, but he does not reign. It has been 
reserved for the President of the French Republic neither 
to reign nor yet to govern." 2 

At first sight the situation does, indeed, appear somewhat 
irrational. When the head of the state is designated by the 
accident of birth it is not unnatural to make of him an idol, 
and appoint a high priest to speak in his name; but when 
he is carefully selected as the man most fit for the place, 
it seems a trifle illogical to entrust the duties of the office 
to some one else. By the constitution of Sieyes an orna- 
mental post of a similar character was prepared for the First 
Consul, but Napoleon said he had no mind to play the part 
of a pig kept to fatten. In government, however, the most 
logical system is not always the best, and the anomalous 
position of the President has saved France from the dan- 
ger of his trying to make himself a dictator, while the fact 
that he is independent of the changing moods of the cham- 
bers has given to the Republic a dignity and stability it 
had never enjoyed before. It is a curious commentary on 
the nature of human ambition, that in spite of the small 
power actually wielded by the President in France, the 
presidential fever seems to have nearly as strong a hold on 
public men as in this country. 

1 See " France under M. Constans," in Murray's Magazine for May, 1890. 

2 Popular Government, p. 250. 



FRANCE: INSTITUTIONS 119 

The Conseil d'Etat 

Before proceeding to consider the ministers, there is one 
other institution which claims attention on account of its 
past rather than its present position. This is the Conseil 
d'Etat or Council of State, 1 a body whose importance has 
varied a great deal at different times. Under Napoleon I, 
and again during the Second Empire, in addition to the 
possession of executive functions, it was a real source of 
legislation; while at the time of the Restoration and the 
Monarchy of July it became what it is to-day, a council 
with high attributes, but very little authority. Except as a 
court of administrative justice, 2 it has now lost most of its 
influence; for, although it must be consulted before certain 
classes of ordinances can be issued, and may be consulted 
.on other administrative matters, its advice need never be 
followed; and in fact the habit of consulting it is said to 
have become little more than a mere form. 3 The legislative 
functions of the Council have faded even more completely 
to a shadow, as is proved by the fact that while the gov- 
ernment or either of the chambers may seek its aid in the 
framing of statutes, the privilege is rarely exercised by 
the ministers, scarcely at all by the Senate, and never by 
the Chamber of Deputies. 

The members of the Council are divided into several 
classes, but those belonging to the most important class, 

1 Aucoc, Conferences sur le Droit Adm., liv. ii, ch. i, § 3; Ducrocq, Cours 
de Droit Adm., tit. i, ch. i, sec. i, § iii; Bceurf, Resume sur le Droit Adm., 
ed. of 1895, p. 32 et seq.; cf. Lebon, Frankreich, pp. 96-98; Dupriez, ii. 
285-316, passim, and pp. 481-492; Goodnow, Comparative Administrative 
Law, i. 107-113. See also articles entitled " Le Conseil d'Etat et les 
Pro jets de Reforme," by Varagnac, Revue des Deux Mondes, Aug. 15 and 
Sept. 15, 1892. 

2 For its functions of this nature, see infra. 

8 "La Reforme Administrative — La Justice," by Vicomte d'Avenel, 
Revue des Deux Mondes, June 1, 1889, pp. 597-598. 



120 GREATER EUROPEAN GOVERNMENTS 

and the only ones who can vote when the Council sits as a 
court, are appointed and dismissed at will by the President 
of the Republic. 1 

The Ministers 

In a parliamentary system the ministers have two dis- 
tinct functions. One of these is the same as that of the 
members of the President's Cabinet in the United States, 
and consists of the management of the departments of the 
administration. The other is the duty of representing the 
government in the legislature, urging the adoption of its 
measures, and defending its policy against the attacks of its 
adversaries. These two functions are not necessarily 
united; and, in fact, it has been a common habit in some 
countries to appoint ministers without portfolios, as it is 
called, that is, without any executive duties at all, in order 
that they may devote their whole energy to the battles in 
Parliament. 1 Although there is nothing to prevent such 
a practice in France, it is not followed to-day, each minister 
being at the head of a particular branch of the administra- 
tion. The number of departments, however, and the dis- 
tribution of the public business among them, is not fixed by 
law, but is regulated from time to time by decree of the 
President of the Republic. The number of ministers is, 
therefore, constantly liable to change according to the im- 
mediate needs of the public service. Before the war, there 
were twelve departments or ministries: those of the In- 
terior; of Justice; of Foreign Affairs; of Finance; of War; 

1 The other members are appointed by the President subject to certain 
conditions, but as he can dismiss any of them, their tenure of office depends 
on the pleasure of the cabinet, and in fact by means of resignations or re- 
movals, most of the councilors were changed in 1879 in order to make the 
council Republican. — " Le Conseil d'Etat," Varagnac, Revue des Deux 
Mondes, Sept. 15, 1892, p. 295. 



FRANCE: INSTITUTIONS 121 

of the Navy; of Education and the Fine Arts; of Public 
Works; of Labor; of Commerce, Industry, and Post and 
Telegraphs; of Agriculture; and of the Colonies. 1 

Their Responsibility to the Chambers 

The constitutional law of February 25, 1875 (Art. 6), 
declares that the ministers are collectively responsible to 
the chambers for the general policy of the government, and 
individually for their personal acts. The object of this 
clause was, of course, to establish the parliamentary sys- 
tem, and in fact the French ministry is responsible to the 
Chamber of Deputies, as the English is to the House of Com- 
mons, and resigns on a hostile vote on any matter of im- 
portance. Except, indeed, for the Ministers of War and 
of the Navy, who are usually military men, the cabinet 
officers are almost always selected from among the members 
of Parliament, although the reason for this practice in 
England does not apply in France, because the ministers 
have a right to be present and speak in either chamber, 
whether members of it or not. 2 

Their Enormous Power 

But in order to understand fully the position of the French 
ministers, and their relation to the Parliament, it is neces- 
sary to realize their enormous power, and this is due largely 
to three causes — the paternal nature of the government, 
the centralization of the state, and the possession by the 

1 This practice virtually exists in England, because some of the offices 
held by the ministers, such as that of Firpt Lord of the Treasury, and that 
of Chancellor of the Duchy of Lancaster, involve little or no administrative 
duties. 

3 Const. Law of July 16, 1875, Art. 6. In practice this privilege is also 
accorded to their undersecretaries. Lebon, Frankreich, p. 52. 



122 GREATER EUROPEAN GOVERNMENTS 

executive of authority that in an Anglo-Saxon country 
would be lodged with the legislature or the courts of law. 

On the first of these matters, the paternal nature of the 
government, there is no need to dwell at length. All gov- 
ernments are growing more paternal at the present day, 
for a reaction has set in against the extreme laissez-faire 
doctrines preached by Adam Smith, John Stuart Mill, and 
the English political economists of the earlier school. There 
is a general tendency to restrain the liberty of the individual 
and subject him to governmental supervision and control. 
Such control and supervision are traditional in France, and 
far exceed anything to which we are accustomed in this 
country. All trades and occupations are there subject to 
a great deal more police inspection than with us. They 
require more generally to be licensed, and are regulated and 
prohibited by the administrative officials with a much freer 
hand. And although the liberty of the press and the right 
of holding public meetings have been substantially realized 
under the republic, the right of association was very limited 
until the law of July i, 1901, for no society of more than 
twenty persons, except business companies and associa- 
tions of persons pursuing the same profession or trade, 
could be formed without the permission of the Minister of 
the Interior or the prefect of the department. 1 It is easy 
to see how much power all this paternalism places in the 
hands of the administration. 

Local Government 

An explanation of the centralization of the state entails 
a brief survey of local government; and here we meet with 
a deeply rooted French tradition, for centralization was 

1 Lebon, Frankreich, pp. 32-39; Ducrocq, tit. ii, ch. iii; ch. iv, § iii. 



FRANCE: INSTITUTIONS 1 23 

already great under the old regime, and although the first 
effect of the Revolution was to place the administration of 
local affairs under the control of independent elected bodies, 
the pressure of foreign war, and the necessity of maintain- 
ing order at home, soon threw despotic power into the 
hands of the national government. Under Napoleon this 
power became crystallized in a permanent form, and an 
administrative system was established, more perfect, more 
effective, and at the same time more centralized than that 
which had existed under the monarchy. 1 The outward 
form of the Napoleonic system has been continuously pre- 
served with surprisingly little change, but since 1830 its 
spirit has been modified in two distinct ways: first, by 
means of what the French call deconcentration, that is, by 
giving to the local agents of the central government a greater 
right of independent action, so that they are more free from 
the direct tutelage of the ministers; second, by a process of 
true decentralization, or the introduction of the elective 
principle into local government, and the extension of the 
powers of the local representative bodies. But although the 
successive rulers of France have pursued this policy rather 
steadily, the progress of local self-government has been far 
from rapid. 2 One reason for this is the habit of looking to 
the central authorities for guidance in all matters. Another 
is a fear on the part of the government of furnishing its 
enemies with rallying-points which might be used to organ- 
ize an opposition — a fear that takes shape to-day in pro- 

1 For a short but vigorous comment on Napoleon's system, see G. L. 
Dickinson, Revolution and Reaction in Modern France, ch. ii. 

2 On the subject of local government, I have used Aucoc, Conferences, 
3ded.; Bceuf, Resume, ed. of 1895; Leroy-Beaulieu, Adm. Locale en France 
et en Angleterre; Lebon's two works on France; Goodnow, Comp. Adm. Law. 
There is a popular account in Block, Entretiens familiers sur VAdm. de notre 
pays. 



124 GREATER EUROPEAN GOVERNMENTS 

visions forbidding the local elected councils to express any 
opinions on general politics, or to communicate with each 
other except about certain matters specified by law. A 
third cause of the feeble state of local self-government is to 
be found in the fact that the Revolution of 1789 destroyed 
all the existing local divisions except the commune, and 
replaced them by artificial districts which have never de- 
veloped any great vitality, so that the commune is the only 
true centre of local life in the republic. 1 A fourth, and per- 
haps the most potent cause of all, is the dread of disorder 
which has been constantly present in the minds of French- 
men, and has made them crave a master strong enough to 
cope with any outbreak. 

The Prefect 

France is divided into eighty-six departments, at the 
head of each of which is a prefect, appointed and removed 
at pleasure by the President of the Republic, but in reality 
nominated by the Minister of the Interior. The office is, 
indeed, regarded as distinctly political, and the incumbent 
is often replaced when the minister changes. The prefect, 
who is by far the most important of the local officials, oc- 
cupies a double position, for he is the agent of the central 
government in regard to those matters of general administra- 
tion which are thought to concern the whole country, and 
at the same time he is the executive officer of the depart- 
ment for local affairs. In the former capacity he is in theory 
the immediate subordinate of the Minister of the Interior, 
but since his duties extend to all branches of the administra- 
tion, he corresponds in practice directly with any minister 
in whose sphere of action the matter with which he is called 

1 Most of the existing communes were in fact created in 1789. 



FRANCE: INSTITUTIONS 1 25 

upon to deal may lie. His authority as the agent of the 
central government is not, however, the same in all cases. 
Sometimes he is absolutely subject to the orders of the 
ministers. This is true when he executes general laws and 
ordinances; but when, for example, he directs the police 
of the department, or supervises the subordinate local 
bodies, he proceeds on his own responsibility, and his acts 
can be overruled by the central government only in case 
they are contrary to law, or give rise to complaints on the 
part of the persons affected by them. In pursuance of the 
policy of deconcentration, the prefect has been given an 
independent authority of this kind over a large number of 
subjects; and he was intended to exercise his own judgment 
in regard to them, but the influence and pressure of the 
deputies has, it is said, induced him to shirk responsibility 
as much as possible by referring doubtful questions to the 
ministers, and hence the centralization has not been dimin- 
ished as much as was expected. 1 In matters of general 
administration, the prefect is assisted by a prefectorial 
council of three or four members appointed by the Presi- 
dent of the Republic; but, except when it sits as an ad- 
ministrative court, the functions of this body are almost 
altogether advisory, and their use has become scarcely 
more than a form. 2 

The General Council 

As the executive officer for local affairs, the prefect car- 
ries out the resolutions of the General Council. This is the 
representative assembly of the department, and is elected 
by universal suffrage, one of the members being chosen in 

1 Channes, Letter of October 1, 1884. 

2 Vicomte d'Avenel, " La Reforme Administrative," Revue des Deux 
Mondes, June 1, 1889, p. 596. 



126 GREATER EUROPEAN GOVERNMENTS 

each canton for six years, and half of them being renewed 
every three years. The authority of the body is jealously 
limited. Its competence is almost entirely confined to af- 
fairs that are deemed to have a strictly local interest/ and 
even in regard to these its powers are not absolute, for its 
votes on certain matters can be annulled by the President 
of the Republic, and its budget, that is the annual tax levy 
and list of appropriations, is not valid without his approval. 
Although the Council has the right of final decision in a con- 
siderable class of subjects, its actual power over them is 
curtailed in a variety of ways. In the first place it does not 
carry out its own votes, but their execution is entrusted to 
an agent of the central government, the prefect, who ap- 
points all the officials, manages the public institutions, and 
signs the orders for all payments of money; the direct con- 
trol of the council over his performance of these duties ex- 
tending only to the election of a standing commission which 
has little more than a right of inspection. 2 In the second 
place, the prefect has an opportunity to exert a great deal 
of influence over the action of the Council, for not only has 
he a right to address it, but he prepares the budget and all 
other business, and in fact it is not allowed to act on any 
matter until it has heard his report. 3 Moreover, the Coun- 
cil is only permitted to sit a very short time. It has two 
regular sessions a year, whose duration is limited, one to a 
month, the other to a fortnight; and although extra ses- 
sions can be held they must not exceed one week apiece. 

1 Its functions in relation to the general administration consist in ap- 
portioning certain direct taxes, in giving its advice when asked, and in ex- 
pressing its wishes on matters not connected with general politics. 

2 The Council can delegate to this commission a somewhat indefinite class 
of functions, but it is not in fact a body of much importance. Dupriez, 
ii. 467-468. 

8 Aucoc, p. 282. 



FRANCE: INSTITUTIONS 1 27 

Finally its very existence is insecure, for it can be dissolved 
by the chief of the state. In general it may be said that 
in matters falling within its province the General Council 
cannot do everything it wants, but can prevent almost 
anything it does not want. Its financial resources are not 
large, 1 and its attention is confined for the most part to the 
construction of roads, subventions to railroads, and the 
care of schools, insane asylums, and other institutions of 
a similar character. 

At one time a hope was entertained that politics might 
be kept out of the general councils, but it has not been ful- 
filled, the departmental elections being regularly conducted 
on party lines. 2 It has therefore been thought best to 
entrust the supervision of the communes largely to the cen- 
tral government and its representative the prefect, rather 
than to the councils with their partisan bias, and this, of 
course, deprives the latter of a part of the importance they 
would otherwise possess. 3 

The Arrondissement and the Canton 

The next local division is the arrondissement. This is a 
mere administrative district without corporate personality, 
with no property, revenues, or expenses of its own, and al- 
though it has a subprefect and an elected council, neither 
of them has much power. In fact it has been proposed to 
abolish the arrondissement altogether. 

1 Almost its only source of revenue is the addition of a limited sum to the 
direct state taxes. 

2 Bozerian, in his Etude sur la Revision de la Constitution (pp. 89-90), 
attributes this to the fact that the local assemblies take part in the elec- 
tion of senators. 

3 By the law of 1884 on municipalities, part of the supervision over these 
bodies, which had previously been in the hands of the general councils, 
was withdrawn and given to the prefect. 



128 GREATER EUROPEAN GOVERNMENTS 

The canton, which is the next subdivision, is really a 
judicial and military rather than an administrative district, 
and therefore does not concern us here. 

The Commune 

We now come to the communes, which are the smallest 
local entities, but differ enormously in area and population. 
They vary in size from twenty acres to over a quarter of a 
million, and they run all the way from a hamlet with a 
dozen inhabitants to large cities; yet with the exception of 
Paris, Lyons, and Marseilles they are all governed on one 
plan. The officer in the commune whose position corre- 
sponds to that of the prefect in the department is the mayor. 
He acts in the same way both as agent of the central gov- 
ernment, and as the executive head of the district, but 
whereas in the prefect the former character predominates, 
the mayor is chiefly occupied with local matters. It is 
largely for this reason that, unlike the prefect, he is not 
appointed by the President, but since 1884 has been elected 
by and from the communal council for the length of its own 
term. 1 The mayor is, however, by no means free from con- 
trol. So far as he acts as agent of the central government, 
he is absolutely under the orders of the prefect. Nor is this 
all. The subject of communal police, which includes the 
public health and other matters of a kindred nature, is 
considered a part of the local administration, but the acts 
of the mayor in regard to it can be annulled by the prefect, 
who has also power in many cases to issue direct orders of 
his own. Moreover the police officials require to be con- 
firmed by the prefect, 2 and can be removed only by him. 3 

1 The office is an honorary one, as the mayor receives no salary. 

2 Or sub-prefect. 

3 The mayor is not free from control in regard to other matters of local 
interest, for his accounts must be submitted for approval to the prefect, 



FRANCE: INSTITUTIONS 1 29 

But even these extensive powers of control are not deemed 
enough, and it is provided that the mayor can be suspended 
from office for a month by the prefect, or for three months 
by the Minister of the Interior, and can be removed alto- 
gether by the President of the Republic. 

The deliberative organ of the commune is the communal 
council, which varies in size from ten to thirty-six members, 
and is elected by universal suffrage for four years. Its 
authority extends to all communal affairs, except that it 
has nothing to do with the broad subject of police, although 
that is regarded for other purposes as a local matter. The 
statute on municipal government lays down the general 
principle that the decisions of the council on local affairs, 
when legally made, are conclusive without the approval 
of any superior administrative official, but in a subsequent 
section all the most important matters are specially ex- 
cepted from the rule. The list of exceptions includes almost 
every financial measure, the construction of roads and 
buildings, and the sale of communal property. 1 The council 
has, therefore, very much less power than might at first be 
supposed; and in order to guard against any attempt on 
its part to exceed these slender privileges, the prefect is 
given a discretionary authority to suspend it for a month, 
while the President of the Republic can dissolve it entirely 
and appoint a commission with limited powers to rule the 
commune for two months, when a new election must take 
place. 

As in England, so also in France, much of the work of 
local administration is done by, and much of the credit there- 
for is due to, permanent officials little seen by the public; 

who can order the payment of any expense properly authorized if the mayor 
neglects to make it. 

1 The official who has power to approve the budget can also inscribe 
therein certain obligatory expenses. 



130 GREATER EUROPEAN GOVERNMENTS 

and chief among them to the secretary of the mayor, who in 
small communes is apt to be the village schoolmaster also. 1 

Paris 

The general laws of local government already described 
do not, however, cover the whole field, because a dread of 
the explosive character and communistic tendencies of the 
democracy of Paris has prevented the capital from enjoy- 
ing even the measure of liberty granted to other towns. 
The city has, indeed, a municipal council composed of eighty 
elected members and endowed with most of the usual pow- 
ers and a general council for the department with limited 
powers, composed of these same eighty reinforced by eight 
suburban members; but the executive authority is entirely 
in the hands of the central government. It is lodged in part 
with the mayors of the twenty arrondissements, who are 
appointed directly by the President of the Republic; but 
chiefly with two prefects appointed in the same way. One 
of these, the Prefect of the Seine, has most of the functions 
of the ordinary prefect, together with those of a central 
mayor; while the other, the Prefect of Police, has charge 
of the police, and is directly responsible to the Minister of 
the Interior. 2 

This sketch of local government in France shows how 
centralized the state still remains, what extensive super- 
vision and control the administration keeps in its own hands, 
and how slight is the measure of real local autonomy, if 
measured by an Anglo-Saxon standard. In fact, the cen- 

1 The Governments of European Cities, pp. 86-87, 9°- 

2 In Lyons the control of the police is still entrusted to the Prefect of the 
Rhone; in Marseilles it is in charge of the Prefect of the Bouches-du-Rh6ne. 
In all cities of over 40,000 people the organization of the police is fixed by- 
decree of the chief of the state, although the members of the force are ap- 
pointed as in other communes. 



FRANCE: INSTITUTIONS 131 

tral government still makes itself continually and actively 
felt in local affairs, and this is for the ministers a great 
source of power, but also, as we shall see later, a cause of 
weakness. 

Legislative Powers of the Executive 

A third source of the enormous power of the ministers 
in France is the possession by the executive of authority 
that in an Anglo-Saxon country would be lodged with the 
legislature or the courts of law. This requires an explana- 
tion, for it involves some of the most interesting peculiarities 
of French, and, indeed, of continental political ideas. 

Decrees and Ordinances 

Let us take first the legislative authority of the executive 
in France. When an English or an American legislator 
drafts a statute he tries to cover all questions that can pos- 
sibly arise. He goes into details and describes minutely 
the operation of the act, in order that every conceivable 
case may be expressly and distinctly provided for. He does 
this because there is no one who has power to remedy de- 
fects that may subsequently appear. If the law is vague 
or obscure, it can receive an authoritative interpretation 
only from the courts by the slow process of litigation. If 
it is incomplete, it must remain so until amended by a sub- 
sequent enactment. In some cases, it is true, an officer or 
board is given by statute power to make regulations. The 
Local Government Board and our boards of health furnish 
examples of this; but such cases are exceptional, and most 
Anglo-Saxons feel that the power is in its nature arbitrary, 
and ought not to be extended farther than is necessary. 
And here it is important to distinguish between rules issued 
by the head of a department for the guidance of his subordi- 



132 GREATER EUROPEAN GOVERNMENTS 

nates and the regulations of which we are speaking. The 
former are merely directions given to the officials for the 
purpose of instructing them in their duties, and are bind- 
ing on no one else. The right to issue them must belong, to 
some extent, to every one who has other persons under his 
orders, although they are used much more systematically 
in France than in the United States. The regulations with 
which we are concerned here are of quite a different kind, 
for they are binding on all citizens who may be affected by 
them, and have, in fact, the character of laws. 

In America the authority to make regulations is dele- 
gated by the legislature cautiously, and apart from such an 
express delegation no officer of the government has power 
to issue any ordinances with the force of law. But in France 
all this is very different. Statutes that do not concern the 
rights of a man against his neighbor, that do not, in other 
words, form a part of the Civil Code, are often couched in 
general terms, and enunciate a principle which the execu- 
tive is to carry out in detail. 1 Sometimes the President of 
the Republic is expressly given power to make regulations, 
but even without any special authority he has a general 
power to make them for the purpose of completing the 
statutes, by virtue of his general duty to execute the laws. 2 
Such regulations in France are called acts of secondary 
legislation, and the ordinances of the President in which 
they are contained are termed decrets. The power to make 
them is not, however, confined to the chief of the state. 

1 Dupriez (ii. 377), after remarking this difference between English and 
French legislation, expresses a regret that the French Parliament has shown 
a tendency of late years to go more into details. 

2 On the power to issue ordinances in France, see Aucoc, Conferences, 
§§ 52-57, 66, 91, 170; Ducrocq, Cours, §§ 61-66, 72-73, 109-110, 210-214; 
Goodnow, i. 85-87. Before issuing certain classes of ordinances the Presi- 
dent must consult the Council of State, but he is not obliged to follow its 
advice. 



FRANCE: INSTITUTIONS 133 

For matters of inferior gravity the laws often confer a 
similar authority on the ministers, the prefects, and even 
the mayors, and in this case the edicts are termed arretes, 
to distinguish them from the more solemn ordinances of 
the President. 1 The regulations cannot, of course, be con- 
trary to law, or in excess of the authority of the official who 
issues them. If they are so, and infringe private rights, a 
process to have them annulled may be instituted before the 
administrative courts, and in certain limited cases the ordi- 
nary courts can also refuse to apply them. 2 

Appropriations 

So much for the power of the executive to make law, but 
this does not exhaust its encroachments on what we have 
learned to regard as the province of the legislature, for it 
is less strictly held to the appropriations voted by the 
chambers than is the case with us. The virements (that is 
to say, the use for one purpose of appropriations voted for 
another), which were an abuse under the Empire, have, 
indeed, been abolished, except as between different items 
in the same chapter of the annual budget; but certain 
chapters are designated each year to which additions can be 
made by decree of the President issued with the consent of 
the council of ministers. Moreover, in urgent and unfore- 
seen cases arising when Parliament is not in session, the 
government has power by means of such a decree, not only 
to incur the expenses called for by the emergency, but also 
to open an extraordinary credit on its own authority and 
borrow the money that it needs. 3 

1 Lebon, Frankreich, p. 23; Aucoc, Ducrocq, ubi cit. 

2 Laferriere, Traite de la Jur. Adm., liv. iii, ch. i, sec. ii; liv. vi; liv. vii, 
ch. i, sec. iv. 

3 In both cases notice of the decree must be laid before the Chambers 
within fourteen days from their next meeting. (Lebon, Frankreich, p. 162.) 



134 GREATER EUROPEAN GOVERNMENTS 

Judicial Powers of the Executive 

One may, perhaps, be pardoned for dwelling at some- 
what greater length on the judicial powers of the executive 
in France, both because they are so little understood by 
English-speaking people, and because their origin may be 
traced to a tradition which has its roots far back in the past. 

The characteristic difference between the political history 
of England and that of France is to be found in the fact that 
the English, though influenced by each new spirit of the 
age, have never yielded entirely to its guidance, while the 
French have always thrown themselves into the current, 
and, adopting completely the dominant ideas of the time, 
have carried them to their logical results. Thus, in the 
Middle Ages, the feudal system never became fully de- 
veloped in England as it did in France. Again, when ab- 
solute monarchy came into vogue, the British sovereign 
was not able to acquire the arbitrary power of the Bourbons. 
And, lastly, democracy made its way neither so rapidly nor 
so thoroughly on the north as on the south of the Channel. 
The result is that in France the institutions of any period 
have been adapted almost exclusively to the wants of the 
time in which they were produced, and in the succeeding 
age it has been thought necessary to destroy them and 
devise new ones more in harmony with the new conditions; l 

It is worth while, moreover, to note in passing that there is no effective 
process for bringing to account a minister who exceeds the appropriations. 
He can, indeed, be impeached, but except in times of great excitement this 
would not be done if the money had been expended for public purposes; and 
as regards civil liability, there is no court that has power to compel him to 
refund the sums which he has spent illegally. 

1 This is the more striking because the French are in some ways more 
conservative than the English, as, for example, in their retention to the 
present day of nominally public executions. M. Lebon truly remarks 
{France as It Is, p. 86) : " People have no idea of the spirit of routine and 
conservatism which prevails in France." 



FRANCE: INSTITUTIONS 1 35 

whereas in England there has been no need of such sweep- 
ing changes, and it has been possible to preserve in a 
modified form many of the most important features of the 
government. Hence the permanence and continuity of the 
political system. 1 Let us inquire how these facts have 
affected the development of judicial and administrative 
institutions in the two countries. 

Early Royal Power in England 

The Norman kings of England strove deliberately to 
check the growth of the feudal system, and their successors 
constantly followed the same policy. Now the essence of 
the feudal system consisted in the blending of public and 
private law by making all political relations depend on the 
tenure of land; and, in fact, according to the strict feudal 
theory, no man had direct relations with any superior ex- 
cept his immediate overlord. Every great vassal of the 
crown, therefore, had jurisdiction over all the tenants on 
his estate, which he exercised by holding a court of his 
own for the administration of justice among them. 

The Judicial System in England 

The English kings resisted this principle, and tried to bring 
their power to bear directly on all the people of the realm. 
For this purpose sheriffs were appointed to represent the 
crown in the counties, and what was of more permanent 
importance, the gravest crimes, actions for the possession 
of land, and subsequently other matters, were brought 
within the jurisdiction of the Curia Regis. 2 As early as the 
reign of Henry I, moreover, royal officers were commissioned 

1 Cf . Freeman, Growth of the English Constitution, pp. 63-66. 

2 See Pollock & Maitland, History of English Law, vol. i. 85-87, and 
chs. v and vi. 



136 GREATER EUROPEAN GOVERNMENTS 

to travel about the country holding court, a practice which 
was renewed in a more systematic form by Henry II, and 
has continued with short interruptions to the present day. 1 
The chief object of the early kings in sending out the itin- 
erant justices, as they were called, was no doubt financial; 
for their duties consisted in assessing taxes, collecting fines 
for violation of the law, and administering justice, which 
was in itself a source of no small profit in the Middle Ages. 2 
The functions of the justices in the collection of revenue 
grew, however, less and less prominent, but their adminis- 
tration of justice became of permanent importance, and in 
regard to this two tendencies were at work. In the first 
place, the royal judges adopted new methods of procedure 
and gradually developed the trial by jury, while the baronial 
courts clung to the ordeal and other barbaric forms of 
trial. 3 " The gladsome light of jurisprudence," as Coke 
called it, came with the king's courts, and hence it is not 
surprising that they supplanted the baronial courts, and in 
time drew before themselves all the important lawsuits. In 
the second place, the commissions which had at first been 
issued to high officials, barons, and knights, became con- 
fined to regular judges, and about the time of Edward I 
were given only to the members of the royal courts at 
Westminster. 4 The same body of judges, therefore, ex- 

1 The institution of traveling judges was not new. It had been used by 
Charlemagne (Hallam, Middle Ages, ch. ii, part ii. 5), and a similar practice 
was employed by Alfred, Edgar, and Canute (Stubbs, History of England, 
xi. §§ 127, 134). On the itinerant justices, see Stubbs, lb. xi. 127; xii. 141, 
145, 150; xiii. 163; xv. 235; Gneist, Englische Verfassungsgeschichte, pp. 148, 
224-228, 305 (note), 318-319, 447. Pollock & Maitland, i. 134, 149* x 79; 
Franqueville, Le Systeme Judiciaire de la Grande Bretagne, i. 149 et seq. 
The royal duty of sending the justices in eyre is one of those insisted upon in 
Magna Charta, § 18. 

2 Stubbs, lb., xi. 127. 3 Cf. Stubbs, lb., xiii. 164; Gneist, lb., p. 142. 
4 Gneist, lb., p. 318; Stubbs, lb., xv. 235. 



FRANCE: INSTITUTIONS 1 37 

pounded the law in all parts of the realm; and hence Eng- 
land, alone among the countries of Europe, developed a 
uniform national justice called the common law. 1 The 
people naturally became attached to this law and boasted 
of the rights of Englishmen, while the courts that were the 
creators and guardians of the law became strong and 
respected. 

The Administrative System 

The very fact that the judicial branch of the government 
became so highly developed made the centralization of the 
administration unnecessary. At the time when the itin- 
erant justices first went on circuit, administration in the 
modern sense was of course unknown, and such local affairs 
as needed attention were regulated by the shire moots and 
other local meetings. 2 The sheriff, indeed, represented 
the crown; but his powers were curtailed more and more, 
until, apart from his command of the military forces of the 
county, he became little more than an officer of the courts. 3 
When the local administration grew more important, it was 
confided not to him, but to justices of the peace, who, though 
nominally selected by the king, were never strictly under 
his orders, and in time became almost completely independ- 
ent, except for the purely judicial control exercised by the 
Court of King's Bench. 4 

The Royal Power in France 

In England, therefore, the royal power came early into 
contact with the people all over the kingdom by means of 

1 Cf. Hallam, Middle Ages, ch. viii, part ii. 3. 

2 Stubbs, lb., xv. 205. 

3 On the powers of the sheriff, see Stubbs, lb., xiii. 163, xv. 204-207; 
Gneist, lb., pp. 115-120, 297. 

4 Gneist, lb., pp. 298 et seq., 468 et seq. 



I38 GREATER EUROPEAN GOVERNMENTS 

the courts of law, and the judicial system became highly 
centralized; while the local administrative institutions 
developed slowly, and through them the king's authority 
was little felt. In France, the course of events was very 
different, for the royal power came into direct contact with 
the people at a much later date, and therefore in quite 
another form. 

The Judicial System in France 

When the feudal system became established, the great 
vassals set up their own courts and succeeded in excluding 
the royal judges from their fiefs, so that the direct jurisdic- 
tion of the crown became confined to the comparatively 
small part of the country which was included in the royal 
domain. Gradually, indeed, as the feudal system began to 
lose its strength, the king's jurisdiction encroached upon 
that of the vassals — a process which was carried on both by 
insisting on the right of appeal to the royal tribunals, and 
by reserving for the exclusive cognizance of the king's 
courts a somewhat indefinite class of cases known by the 
name of cas royaux. 1 But this process aroused serious re- 
sistance on the part of the territorial lords, and it was not 
until the sixteenth century that the crown judges possessed 
the universal authority they had obtained in England more 
than three hundred years earlier. So strong, in fact, did 
the local jealousy of the Parliament of Paris (the king's 
high court of justice) remain, that after the great fiefs fell 
into the hands of the crown, they were not placed under the 
jurisdiction of that tribunal, but were given independent 

1 Aubert, Le Parlement de Paris de Phillippe le Bel a Charles VII, ch. i, 
sec. i; Hist, du Pari, de Paris, 1250-1515, liv. ii, ch. i; Du Bois, Hist, du 
Droit Criminel de la France, part, i, ch. i; Esmein, Hist, du Droit Francais, 
part i, tit. ii, ch. i; Hist, de la Proc. Crim., part i, tit. i, ch. i, sec. ii; ch. ii, 
sec. i; Hallam, Middle Ages, ch. ii, pt. ii. 5. 



FRANCE: INSTITUTIONS 1 39 

parliaments of their own. 1 At the outbreak of the Revolu- 
tion there were thirteen separate parliaments, so that every 
considerable province had a distinct body of tribunals. 2 
Under these circumstances, the courts could not create a 
uniform national justice like the English common law, and 
although since the revolution such a uniform system has 
been provided by the Code, this does not strengthen the 
hands of the judges, but has rather the opposite tendency. 
In the first place, it is not their work, and hence does not 
redound to their glory; and secondly, by weakening the 
force of precedent, it diminishes the importance of judicial 
decisions. This review of the history of the courts of law 
shows clearly why they have not attained in France the 
same power and authority as in Anglo-Saxon countries. 3 

The Administrative System 

The French courts of law were weak because the royal 
authority did not come into direct contact with the people 
at the time when public and private law were everywhere 
blended, when the tone of thought was peculiarly legal, and 
when political power was chiefly exercised in a judicial or 
semi-judicial form. 4 It made itself felt at a later date, and 
especially as the restorer of order after the anarchy caused 
by the Hundred Years' War. Its presence brought peace and 
prosperity, and naturally enough the organs which it em- 
ployed acquired a high degree of vigor. Now, at this period, 

1 Du Bois, pt. i, ch. ii. § 2; Bastard d'Estang. Les Parlements de France, 
i. 36-38; Esmein, Hist, du Droit Franqais, tit. ii, ch. i, sec. i, § 2, v. 

2 For the dates of the creation of the provincial parliaments, which run 
from 1444 to 1775, see Bastard d'Estang, i. 189, note, and Esmein, ubi supra. 

3 Since the Revolution, the courts have, of course, been reorganized on a 
centralized basis. 

4 On the relative importance attributed to law in the Middle Ages, and 
in later times, see Stubbs' chapters on the Characteristic Differences between 
Mediaeval and Modern History, in his Lectures on Med. and Mod. Hist. 



140 GREATER EUROPEAN GOVERNMENTS 

administration, in the modern sense, was becoming impor- 
tant, and as the royal authority came to be exercised by com- 
missioners or intendants, who had, indeed, certain judicial 
powers, but whose functions were chiefly administrative, 1 
the administration developed an influence and a strength 
which the courts had never attained. The administrative 
system became centralized, and grew to be the most im- 
portant factor in the government. 2 All classes of the people 
looked to it for protection; 3 in fact, it took, to a great 
extent, the place which the judiciary rilled in England and 
in those countries which had inherited the English principles. 

Doctrine of the Separation of Powers 

This difference in the relative authority of the courts and 
the administration was intensified- — so far as the United 
States and France were concerned — by the political philoso- 
phy of the last century. Montesquieu, in his " Spirit of the 
Laws," proclaimed the importance of separating the execu- 
tive, legislative, and judicial powers, and the maxim was 
eagerly accepted on both sides of the Atlantic, though in 
very different senses. Our ancestors, anxious to maintain 
the independence of the courts and the sacredness of private 
rights, took the principle to signify the necessity of so pro- 
tecting the courts from the control or influence of the other 
branches of the government that they might be free to ad- 
minister justice without regard to the official position of the 
litigants or the nature of the questions involved. They 
meant to preserve the English tradition that there is only 
one law of the land to which every one is subject, from the 

1 Cheruel, Die. des Inst, de la France, " Intendants des Provinces "; 
Esmein, Hist, du Droit Franqais tit. ii, ch. v, § 2. 

2 Cf. De Tocqueville, An. Reg. et la Rev., liv. ii, chs. ii, iii. 

3 De Tocqueville speaks of all classes as looking on the government as 
a special providence. Id., ch. vi (7th ed. pp. 100-103). 



FRANCE: INSTITUTIONS 141 

humblest citizen to the highest officer. The French, on the 
other hand, had acquired no great passion for law, or for 
the rights of the individual, and did not admit a claim on 
the part of any one to delay or overturn the public interests 
in order to get his own grievances redressed. Moreover, 
they had seen the Parliament of Paris interfere with the 
government by refusing to register the edicts of the king; 
for although this tribunal had failed to acquire judicial 
supremacy, it had retained a good deal of political power, 
which it used during the years preceding the Revolution to 
resist innovations. 1 Such a power might not be disliked as 
a means of opposing an unpopular court party, but it could 
not be tolerated for a moment when the reins of govern- 
ment were seized by men who believed themselves com- 
missioned to reform the world. The French statesmen, 
therefore, took Montesquieu's doctrine in the sense that the 
administration ought to be free to act for the public weal 
without let or hindrance from the courts of law. The Dec- 
laration of the Rights of Man proclaimed in 1789 that a 
community in which the separation of powers was not estab- 
lished had no constitution; and a statute of the next year, 
on the organization of the tribunals, gave effect to the maxim 
as it was understood in France by providing that the judges 
should not interfere in any way with the work of adminis- 
trative authorities, or proceed against the officers of the 
government on account of their official acts. 2 The American 
and French applications of the doctrine of the separation of 
powers are both perfectly logical, but are based on different 
conceptions of the nature of law. The Anglo-Saxon draws 
no distinction between public and private law. To him all 
legal rights and duties of every kind form part of one uni- 

1 Cf. Edward J. Lowell, The Eve of the French Revolution, p. 105. 

2 Aucoc, Conferences, part i, liv. i, ch. i ; Bceuf, Resume, part iv, sec. ii. 



142 GREATER EUROPEAN GOVERNMENTS 

versal system of positive law, and so far as the functions 
of public officials are not regulated by that law, they are 
purely matters of discretion. It follows that every legal 
question, whether it involves the power of a public officer 
or the construction of a private contract, comes before the 
ordinary courts. 1 In France, and in the other states of 
continental Europe, private law, or the regulation of the 
rights and duties of individuals among themselves, is treated 
as only one branch of jurisprudence; while public law, which 
deals with the principles of government and the relations of 
individuals to the state, is regarded as something of an 
entirely different kind. Of course every civilized govern- 
ment must strive to treat all its subjects fairly, and hence, 
in the course of administration, questions of justice must 
arise; but as these do not concern the rights of a man against 
his neighbor they are not classed in France with private 
law. It is felt that, unlike questions of private law, they 
ought not to be decided solely by the application of ab- 
stract principles of justice between man and man, but must 
be considered from the broad standpoint of public policy. 
Now the domain of the ordinary French courts is private 
law alone, and it is quite logical to regard any attempt on 
their part to judge administrative acts and thus pass on 
questions of public policy, as an attempt to go beyond their 
proper sphere of action and invade the province of the 
executive. 2 

The principle of withdrawing questions of public law 
from the ordinary courts was not new. It existed in prac- 

1 This principle, like all others in Anglo-Saxon countries, is not carried 
out with absolute consistency. Thus the various commissions in America 
on railroads, interstate commerce, etc., partake of the nature of the French 
administrative tribunals. 

2 The French, like the Americans, have not applied their principles quite 
strictly, for Criminal Law ought to be a branch of Public Law (Aucoc, 
Introd., § i), but it has been put into the charge of the ordinary courts. 



FRANCE: INSTITUTIONS 143 

tice under the old regime, 1 but was extended and syste- 
matized after the Revolution. The protection of officials 
from suit or prosecution was formally incorporated into the 
Constitution of the year VIII (1799), and remained in force 
until after the fall of Napoleon III, when it was repealed 
by a decree of the Government of the National Defense. 2 
This decree was intended to remove all hindrances in the 
way of bringing government officials before the ordinary 
courts, but it had very little effect, because the Tribunal 
of Conflicts held that it applied only to the personal pro- 
tection of officials, and did not affect the principle of the 
separation of powers, which, as understood in France, for- 
bids the ordinary judges to pass upon the legality of official 
acts. 3 

The Administrative Courts 

Questions of this kind, therefore, are still reserved ex- 
clusively for the administrative courts — tribunals created 
especially for this purpose, and composed of officials in the 
service of the government. Criminal cases are, indeed, an 
exception to the rule, 4 but this is of no great practical im- 
portance, because as force is very sure to be on the side 
of the police, it is no real protection to the individual to 
know that he cannot be condemned for resistance; and on 
the other hand the officials concerned run no risk of punish- 
ment for illegal acts committed in obedience to orders, be- 

1 See Laferriere, Traite, liv. i; De Tocqueville, An. Reg. et la Rev., book ii, 
ch. iv; Varagnac, " Le Conseil d'Etat," Revue des Deux Mondes, Aug. 15, 
1892. 

2 Decree of Sept. 19, 1870. 

3 Arret, 30 Juillet, 1873, "Affaire Peletier," Dalloz, Jur. Gen., 1874, 
part iii, p. 5; Laferriere, Traite, liv. iii, ch. vii; Aucoc, Conf., liv. v, ch. ii; 
Goodnow, Comp. Adm. Law, ii. 172-176. 

4 Laferriere, Traite, liv. iii, ch. vi. But even this exception is not abso- 
lute. See, also, a discussion of the subject in Dalloz, 1881, part iii, p. 17, note, 



144 GREATER EUROPEAN GOVERNMENTS 

cause the government can easily manage to prevent their 
being brought to trial, and can pardon them if convicted. 
In France, therefore, there is one law for the citizen and 
another for the public official, and thus the executive is 
really independent of the judiciary. Nor is the danger of 
interference on the part of the administrative tribunals as 
great as it would be in the case of the ordinary judges, be- 
cause the former can be controlled absolutely in case of 
necessity; and, in fact, they are so much a part of the ad- 
ministration itself that they fall into the province of the 
Interior and not that of Justice. 1 The independence of the 
ordinary judges is secured by a provision which prevents 
their removal or transfer to another court, without the ap- 
proval of the Court of Cassation, the final court of error. 
But the judges of the administrative courts enjoy no such 
protection, and can be removed by the President at any 
time. 2 The result is that, although a great mass of adminis- 
trative law has slowly grown up from the decisions of these 
courts, 3 and personal liberty is much more respected than 

1 It would be absurd to suppose that the government always extorts a 
favorable judgment. This was clearly shown in 1895, in a once famous 
case, which illustrates at the same time the degree of respect entertained 
for the decisions of the administrative courts. The Minister of the Interior 
and the railroads disagreed about the interpretation of a statute relating 
to the state guarantee of interest on the securities of the roads. The matter 
was brought before the Council of State, which decided in favor of the rail- 
road. Thereupon the Minister of the Interior resigned, but the rest of the 
cabinet felt bound to abide by the decision. A discussion was, however, 
raised in the Chamber of Deputies, which in effect censured the ministers 
for submitting the matter to the Council of State, and thereby caused the 
cabinet to resign. 

2 Aucoc, Conf., i. 156-157; Bceuf, Resume, pp. 39-40. The members of the 
Council of State who are qualified to sit as administrative judges are said to 
be always selected from the political friends of the government (Dupriez, 
Les Ministres, ii. 482-483). 

3 Unlike the civil law, the administrative law has never been codified, 
and indeed it could not be without destroying the element of discretion 



FRANCE: INSTITUTIONS 145 

under the Empire, yet the courts themselves cannot be 
considered entirely judicial bodies, and are far from pro- 
viding the rights of the citizen with a complete guarantee, 
at least where political questions are involved. 1 

which is the reason for its existence. So far as it is not contained in statutes 
and ordinances, it has developed, like the English Common Law, by de- 
cision and precedent, and hence the sources for studying it are the reported 
cases and the writings of jurists such as those heretofore cited. 

1 Lebon, France as It Is, pp. 101-102; Goodnow (Comp. Administra- 
tive Law, ii. 220-221, 231) remarks that the administrative courts have 
shown themselves more favorable to private rights than the ordinary courts, 
and in some ways that is certainly true. In English-speaking countries a 
public official can be prosecuted criminally or sued for damages in the ordi- 
nary courts for any acts done without legal authority, whether his action 
was in the public interest or not. But he is not, as a rule, liable for acts 
authorized by law although his actual motives were bad or his discretionary 
powers misused. Nor is he usually liable for negligence in the performance 
of his duties. The state, on the other hand, cannot in theory be sued at all. 
In practice some means of maintaining claims against the state is almost 
always provided; but only for breaches of contract or to recover property, 
not for torts committed by officials. 

In France acts of officials are classified in quite another way with very 
different results. First, there are personal acts, which involve grave per- 
sonal misconduct or gross negligence on the part of the official, whether 
beyond or within his legal authority. For these, and these alone, he is liable 
in damages in the ordinary courts. Whatever he does in good faith for the 
public interest, whether within or beyond his legal authority, is an act of 
administration for which a remedy, if any, can be sought only against the 
state, and as a rule only in the administrative courts. Acts of this kind fall 
into three classes, called actes de gestion, actes d'authorite and actes de gouverne- 
ment. Broadly speaking, actes de gestion are acts done in the course of the 
regular administration of the public services, and the administrative courts 
tend to award compensation against the state for acts of this nature, not 
only when done wholly without legal authority, but also when there has been 
an abuse of that authority for improper purposes, or even negligence, as, for 
example, where a merchantman has been damaged by collision with a war- 
ship. (See a discussion of this whole subject in Hauriou, La Gestion Adminis- 
trative.) Actes d'authorite are done in the exercise of the right of the state 
to issue commands to its citizens; and if such commands, orders or regula- 
tions are issued without legal authority, or involve an abuse of power, they 
can be annulled by a special procedure in the Council of State, which may 



146 GREATER EUROPEAN GOVERNMENTS 

It is not quite accurate to say that the ordinary courts 
can consider the validity of no official act; and, indeed, the 
line between the jurisdiction of the ordinary and the ad- 
ministrative courts does not follow any strictly logical 
principle. 1 Questions of indirect taxes, for example, and 
those relating to the lesser highways {petite voirie) , come be- 
fore the ordinary courts, while those arising under the direct 
taxes, or relating to the greater highways (grande voirie), 
come before the administrative tribunals. The competence 
of the various administrative courts is no less complicated. 
The prefect and the mayor have each a very limited juris- 
diction. That of the prefectorial councils, on the other 
hand, is very considerable, although as a matter of fact 
these councils are occupied almost altogether with ques- 
tions of taxes, and in these, as a rule, they follow the advice 

incidentally award compensation. Finally actes de gouvernement, that is 
acts done for reasons of state with a view to the public safety, whether 
within the legal power of the government or not, lie beyond the jurisdiction 
both of the ordinary and the administrative courts; but there is a distinct 
tendency to restrict this principle to an ever narrowing field. 

It is obvious that while the French system does not hold the official to 
a rigid conformity with law, it often gives compensation from the public 
treasury for tortious acts of officials when in England or America there 
would be no redress, or only an action against an official who might be un- 
able to pay the damages. 

It is somewhat curious in this connection to observe that French writers 
often assert the inability of an ordinary court to protect the public against 
illegal ordinances, because it can only decide the case at bar, whereas an 
administrative court has power to annul the ordinance altogether; a re- 
mark which shows an entire failure to comprehend the force of precedent in 
the Anglo-Saxon judicial system. (See, for example, Varagnac, " Le Conseil 
d'Etat," Revue des Deux Mondes, Sept. 15, 1892, pp. 290-291.) 

A systematic comparison of the English and French systems may be 
found in Professor Dicey's Law of the Constitution, and especially in chapter 
xii. 

1 On this subject, see Laferriere's great work, Traite de la Jurisdiction 
Administrative. 



FRANCE: INSTITUTIONS I47 

of the assessors. 1 But by far the most important adminis- 
trative court is the Council of State, which has a special 
section or committee to attend to the contentieux, as this 
class of litigation is called. The Council not only hears 
appeals from the lower administrative tribunals, but has 
also original jurisdiction in many important cases; and, in 
fact, recent practice is tending to establish the principle 
that the Council of State is the judge of all administrative 
matters in the absence of special provisions of law. The 
number of cases brought before it is very large, and has in- 
creased so rapidly that the section for the contentieux is 
badly in arrears, and it has been proposed to create a sec- 
ond section to relieve the pressure. 2 

The Court of Conflicts 

It is evident that with two sets of courts, neither of which 
is superior to the other, disputes about jurisdiction must 
constantly arise. Such is in fact the case, and a special 
tribunal has been appointed to determine these disputes, 
or conflicts as they are called. 3 It is composed of the Min- 
ister of Justice, of three members of the highest court of 
law, the Court of Cassation, of three members of the high- 
est administrative court, the Council of State (each of these 
sets being selected by their own court), and of two other 
persons elected by the foregoing seven. All the members 
are chosen for three years, except the Minister of Justice. 
This officer has the right to preside, and thus his presence 
gives to the administration a majority in the tribunal. A 
striking example of the working of the system was presented 

1 Vicomte d'Avenel, " La Reforme Administrative — La Justice," Revue 
des Deux Mondes, June 1, 1889, p. 596. 

2 For the number of cases decided by the administrative courts, see the 
tables (through 1886) in Laferriere, liv. i, ch. v. 

3 Aucoc, Conf., vol. i, § 406; Bceuf, Resume, 15th ed., pp. 542-543. 



148 GREATER EUROPEAN GOVERNMENTS 

in 1880, when the government issued decrees for the sup- 
pression of all monastic orders not authorized by law. 
There seems to have been grave doubt about the legality of 
the decrees, and the victims brought suits in the ordinary 
courts in several parts of France. Most of these courts held 
that they were authorized to entertain the suits, and in 
some cases they went so far as to order the persons who had 
been expelled from their establishments to be restored to 
possession pending the trial; x but the government raised 
the question of jurisdiction, and the Tribunal of Conflicts 
decided that the ordinary courts were not competent to 
deal with the matter. 2 It is a significant fact, which seems 
to show a lack of confidence in the impartiality of the ad- 
ministrative courts, that the persons injured did not bring 
the question of the legality of the decrees before the Council 
of State. 3 

When an ordinary court has assumed jurisdiction of a 
case, the question of competence can be raised only by the 
prefect, and not by a party, for the principle that the ordi- 
nary courts cannot determine the legality of official acts is 
intended solely as a protection to the administration. 4 

The State of Siege 

Such is the legal position of the administration in ordinary 
times, but in case of war or insurrection it can be given far 

1 Some of the decisions to this effect may be found in Dalloz, Jurispru- 
dence Gentrale, 1880, part iii, pp. 57-62, and 80. In the note to page 57 there 
is a list of some of the other similar decisions and a discussion of the law. 

2 Arrets de Nov. 4, 5, 13, 17, and 20; Dalloz, 1880, part iii, pp. 1 21-132. 
These cases are reported with unusual fullness. 

3 At least I can find no decision on the subject by the Council of State 
reported in Dalloz. For criticisms on the conduct of the government, see 
Jules Simon, Dieu, Partie, Liberie, ch. vi; and Channes, Nos Fautes, letters 
of July 12 and Oct. 27, 1880. 

4 Aucoc, Conf., vol. i, § 404; Bceuf, Resume, 15th ed., p. 547. 



FRANCE: INSTITUTIONS 1 49 

greater powers, by a proclamation of the state of siege. 
This can be made by statute, or if Parliament is not in 
session it can be made by the President; but in that case 
in order to meet the danger of a coup d'etat, which is ever 
present to the eyes of Frenchmen, it is provided that the 
chambers shall meet as of right in two days. 1 Within the 
district covered by the state of siege, the military courts 
can be given criminal jurisdiction, and can punish any 
offenses against the safety of the Republic or the general 
peace. They can search houses by day or night, expel from 
the district any non-residents, seize all arms, and forbid 
any publications or meetings which are liable to disturb 
the public order. 2 

Effect on the Executive 

I have dwelt at some length on what, from an Anglo- 
Saxon point of view, may well be called the legislative and 
judicial powers of the executive in France, because these 
things are entirely foreign to our own political ideas and 
experience, and because they exist in some form in almost 
every country on the continent of Europe. 

When we consider the paternal character of the govern- 
ment, the centralization of the state, and the large share 
of authority vested in the executive department, we can- 
not fail to see that the ministers in whose hands this vast 
power is lodged must be either very strong or very weak. 
If they are able to wield it as they please, and are really 
free to carry out their own policy, they must be far stronger 
than any officer or body in Great Britain, and immeasurably 
stronger than any in our federal republic. But, on the other 
hand, the very immensity and pervasiveness of their power, 
the fact that it touches closely every interest in the country, 

1 Law of April 3, 1878, Poudra et Pierre, § 79. 

2 Poudra et Pierre, § 76, gives the text of the law. 



ISO GREATER EUROPEAN GOVERNMENTS 

renders them liable to pressure from all sides. It becomes 
important for every one to influence their action, provided 
he can get a standpoint from which to bring a pressure to 
bear. This standpoint is furnished by the Chamber of 
Deputies, for the existence of the ministry depends on the 
votes of that body. The greater, therefore, the power of 
the minister, and the more numerous the favors he is able 
to bestow, the fiercer will be the struggle for them, and the 
less will he be free to pursue his own policy, untrammeled 
by deputies, whose votes he must win if he would remain 
in office. A Frenchman, who is eminent as a student of 
political philosophy, and has at the same time great practi- 
cal experience in politics, once remarked to the author, 
" We have the organization of an empire with the forms of 
a republic." 1 The French administrative system is, in- 
deed, designed for an empire, but when arbitrary power 
falls under the control of popular leaders, it is liable to be 
used for personal and party ends; for, as a keen observer 
has truly said, the defect of democracy lies in the fact that 
it is nobody's business to look after the interests of the 
public. 

1 Gneist expresses the same idea: " Es entsteht der unvermittelte Gegensatz 
einer republikanisch gedachten Verfassung mit einer absolutistisch organisirten 
Verwaltung" (Die Preussiche Kreisordnung, p. 7.) 



CHAPTER VII 

FRANCE: PARTIES 

Parties in Popular Government 

For more than a hundred years it has been the habit to talk 
of government by the people, and the expression is, perhaps, 
more freely used to-day than ever before, yet a superficial 
glance at the history of democracy ought to be enough to 
convince us that in a great nation the people as a whole do 
not and cannot really govern. The fact is that we are 
ruled by parties, whose action is more or less modified, but 
never completely directed, by public opinion. Rousseau, 
indeed, shadowed forth a great truth, when he declared that 
no community could be capable of a general will — or, as we 
should express it, of a true public opinion — where parties or 
sects prevailed ; l and our own experience of popular govern- 
ment will quite justify us in saying that public opinion is 
always more or less warped by the existence of party ties. 
A study of the nature and development of parties is, there- 
fore, one of the most important that can occupy the student 
of political philosophy to-day. Among Anglo-Saxon peoples, 
who have had a far longer experience in self-government 
than most other races, there are usually two great parties 
which dispute for mastery in the state. But in the countries 
on the continent of Europe this is not usually true. We 
there find a number of parties or groups which are independ- 
ent of each other to a greater or less extent, and form coali- 
tions, sometimes of a most unnatural kind, to support or 
oppose the government of the hour. Now the existence of 

1 Contrat Social, liv. ii, ch. iii. 
151 



152 GREATER EUROPEAN GOVERNMENTS 

several distinct political groups has a decisive influence on 
the working of the parliamentary system. Let us consider 
this question a moment. 

The Parliamentary System and Parties 

In describing the English government the relation of 
political parties to the parliamentary system was discussed, 
but it may not be out of place here to recall what was there 
pointed out. 

When a country with a parliamentary form of govern- 
ment is divided into two hostile parties, the ministers who 
lead the majority of the popular chamber must of course 
belong all to one of those parties, or all to the other, and 
even when party strife is less bitter, and parties have begun 
to break up, experience has proved that the best policy for 
the ministers is to support each other and stand or fall to- 
gether. Lord Melbourne is reported to have exclaimed at a 
cabinet meeting, after a discussion on the question of chang- 
ing the duty on corn, " Now is it to lower the price of corn, 
or is n't it ? It is not much matter which we say, but mind, 
we must all say the same." 1 The statesmanship implied by 
this remark may not have been of the highest kind, but the 
poHtics were sound, and showed a knowledge of the great 
secret of success. It is, indeed, an axiom in politics that, 
except under very peculiar circumstances, 2 coalition min- 
istries are short-lived compared with homogeneous ones, 
whose members are in cordial sympathy with each other. 
Now so long as the ministers cling together, every member 
of the House must consider the cabinet and its policy as a 
whole, and make up his mind whether he will support it, or 
help to turn it out and put in an entirely different set of 

1 Bagehot, English Constitution, p. 16, note. 

2 Like those brought about by this war. 



FRANCE: PARTIES 1 53 

ministers with another policy. He cannot support the 
cabinet on certain questions and oppose it on others. He 
must sacrifice details to the general question. The result is 
that the members either group themselves about the minis- 
ters, and vote with them through thick and thin, or else they 
attach themselves to an opposition party, whose object is to 
turn out the cabinet, and then take office itself and carry on 
a different policy. The normal condition of the parliamen- 
tary system, therefore, among a people sufficiently free from 
prejudices to group themselves naturally, and possessing 
enough experience to know that the practical and attain- 
able, and not the ideal, is the true aim in politics, is a divi- 
sion into two parties, each of which is ready to take office 
whenever the other loses its majority. This has been true in 
England in ordinary times, and although of late years it has 
been frequently asserted that the two great parties in the 
House of Commons are destined to come to an end, and be 
replaced by a number of independent groups, the prophecy 
does not accord with experience. It is based on mistaking 
a temporary political condition for a permanent one. The 
sudden interjection of the question of Home Rule into Eng- 
lish politics caused a new party division on fresh lines, which 
necessarily broke up the traditional associations of public 
life, and threw both parties into a state of confusion for 
a great many years. On one side, the opponents of the 
measure were composed of men whose habits of thought 
had been most diverse; while the followers of Mr. Gladstone, 
on the other side, included many Liberals who were forced, 
against their will, to subordinate to Home Rule other mat- 
ters which they deemed more important. In short, the 
introduction of a new issue shattered the old basis of cleav- 
age, and it is not surprising that new, solidified parties were 
not formed in an instant. Moreover it may be noticed that 



154 GREATER EUROPEAN GOVERNMENTS 

although the Liberal groups in the House of Commons have 
often talked freely of their dissensions, they have acted as a 
single party, and have supported the cabinet by their votes, 
with astonishing fidelity. 

A division into two parties is not only the normal result 
of the parliamentary system, but also an essential condition 
of its success. Suppose, for example, that a third party, like 
that of the Irish Home Rulers under Parnell, is formed, and 
places some one specific issue above all others, with the 
determination of voting against any cabinet which does not 
yield to its demands on that point; and suppose this body 
becomes large enough to hold the balance of power. If, in 
such a case, the two old parties do not make a coalition, or 
one of them does not absorb the new group by making con- 
cessions, no ministry will be able to secure a majority. Every 
cabinet will be overthrown as soon as it is formed, and parlia- 
mentary government will be an impossibility. Now suppose 
that the third party, instead of being implacably hostile to 
both the others, is willing for a time to tolerate a cabinet 
from one of them — is willing, in short, to allow the minis- 
ters to retain office provided they give no offense. Under 
these circumstances parliamentary government is not im- 
possible, but it is extremely difficult. The ministers are 
compelled to ride two horses at once. They must try to con- 
ciliate two inharmonious bodies of men, on pain of defeat if 
either of them becomes hostile; and hence their tenure is 
unstable and their course necessarily timid. Now the larger 
the number of discordant groups that form the majority, the 
harder the task of pleasing them all, and the more feeble and 
unstable the position of the cabinet. Nor is the difficulty 
removed by giving portfolios to the members of the several 
groups; for even if this reduces the labor of satisfying the 
parties, it adds that of maintaining an accord among the 



FRANCE: PARTIES 155 

ministers themselves, and entails the proverbial weakness of 
coalition governments. A cabinet which depends for its 
existence on the votes of the Chamber can pursue a con- 
sistent policy with firmness and effect only when it can rely 
for support on a compact and faithful majority; and there- 
fore the parliamentary system will give the country a strong 
and efficient government only in case the majority consists 
of a single party. But this is not all. The opposition must 
also be united. So long as the ministry stands, the composi- 
tion of the minority is, indeed, of little consequence; but 
when that minority becomes a majority, it must in turn be a 
single party, or the weakness of a coalition ministry cannot 
be avoided. It follows that a division of the Chamber into 
two parties, and two parties only, is necessary in order that 
the parliamentary form of government should permanently 
produce good results. 

Many Groups in France 

In France the parliamentary system has not worked 
smoothly, because this condition has not been fulfilled. 1 The 
various groups of Monarchists and Bonapartists formed in 
the traditional party of the Reactionaries, or as it was more 
commonly called, the Right. 2 The rest of the members have 

1 This is recognized by many French writers, e.g., Lamy, La Republique 
en 1883; Paul Laffitte, Le Suffrage Universel et la Regime Parlementaire, pt. i, 
ch. iii; Saleilles, in the Annals of the American Academy of Political Science, 
July, 1895, pp. 57, 64, 65. But the reason for the existence of a number of 
groups in France seems to be only partially understood. The most clear- 
sighted writer on this subject is Dupriez. (See Les Ministres, ii. 363-365, 
370-371, and 386-395.) 

2 For readers unfamiliar with European politics it may perhaps be neces- 
sary to explain the meaning of the terms Right and Left, as they are used 
all over the Continent. In England a broad aisle runs from the Speaker's 
desk through the middle of the House of Commons to the main entrance 
opposite, and the benches of the members are arranged parallel to this aisle 
and facing it. The Ministry sit on the front bench at the right of the Speaker 



156 GREATER EUROPEAN GOVERNMENTS 

been supporters of the Republic, and have formed nominally 
a single party, but they have really been held together only 
by a desire to maintain the existing form of government, and 
have seldom acted in concert except when they thought that 
threatened. They have always comprised men of every 
shade of opinion, from conservatives to radicals and even 
socialists, and would speedily have broken up into com- 
pletely hostile parties, if it had not been for the fear of the 
Reactionaries. Even under the pressure of this fear their 
cohesion has been very slight, for they have been divided 
into a number of groups with organizations which, though 
never either complete or durable, have been quite separate; 
and again, these groups have often been subdivided into still 
smaller groups, whose members were loosely held together 
by similarity of opinions or desire for advancement, usually 
under the standard of some chief, who held, or hoped to win, 
a place in the cabinet. In fact, the parties in the Chamber 
of Deputies have presented such a series of dissolving views 
that it is very difficult to draw an intelligible picture of 
them. 1 

(the so-called Treasury Bench), their supporters taking seats behind and 
alongside of them, while the Opposition sit on the left side of the House. The 
Liberals and Conservatives, therefore, are each to be found sometimes on 
one side of the House and sometimes on the other, according as their party- 
is in power or not. But on the Continent the seats are arranged, as a rule, 
like those of a theatre, as in our legisaltive bodies, the ministers usually 
sitting immediately in front of the Speaker or President, on a bench which 
sometimes faces him and sometimes looks the other way, while the conserva- 
tive members sit on the President's right, the more liberal next to these, and 
the radical on his left. As this arrangement is permanent, the words Right 
and Left have come to be generally used for Conservative and Liberal; and 
the different groups are often designated by their position in the Chamber, 
as the Right, the Centre, and the Left Centre, the Left, or the Extreme Left. 
1 The line of cleavage between the monarchists and republicans has now 
ceased to be of much importance. All the larger factions now profess to 
be republican. These factions are constantly gaining or losing members so 
that it is almost impossible to state their exact numerical strength at any 



FRANCE: PARTIES 1 57 

During the struggle with MacMahon, the Republicans 
had been solidly united, but the danger had not passed very 
long before the Radicals began to show themselves independ- 
ent. They soon became quite ready to upset any ministry 
that offended them, and in fact cabinet after cabinet was 
overthrown by the votes of the Right and the Extreme Left. 
Even Gambetta, who had striven to keep the Republicans 
together, did not escape this fate, in spite of his immense 
popularity both in the country and in the Parliament. He 
did not consent to form a ministry until November, 1881; 
and after holding office only two months and a half, he was 
forced to resign by the refusal of the Chamber to introduce 
the scrutin de liste for the election of deputies. He lived only 
till the end of the year, and his death deprived France of a 
great popular leader. After his fall, politics followed the old 
course, and there passed across the stage a series of short- 
lived ministries. 

During the last few years there has indeed been a nearer 
approach to a division of the deputies into two great parties 
— one Conservative and the other Radical — than at any 
other time since the birth of the Republic; and yet the his- 
tory of the successive ministries during the life of the later 
chambers makes it clear with how little sharpness the lines 
are drawn, and how little the members of the various groups 

one time. Sometimes it happens, indeed, that a member of the Chamber 
may profess to belong to two political groups at the same time. No single 
faction ever forms a majority of the Chamber so that a coalition is always 
necessary. The following groups at present make up the Chamber of Depu- 
ties but their names afford, for the most part, no indication of the principles 
to which they give allegiance: Conservatives (or members of the extreme 
Right); Nationalists (members of the Action Liberale populaire); Pro- 
gressives; Republicans (or Moderates); Radicals; Radical-Socialists; In- 
dependent Socialists; and Independents. The first three groups make up 
the Right; the last five usually make up the Left; but some of the smaller 
groups keep shifting from side to side. 



158 GREATER EUROPEAN GOVERNMENTS 

that compose the majority can be relied upon to be faithful 
to the cabinet. In short, there has been an approach to the 
system of two parties, but as yet not a very near approach, 
and the numerous detached groups still remain the basis of 
parliamentary life. 

Let us now consider the reasons for the subdivisions of the 
Chamber into a number of groups. And first we must look 
at a source of political dissensions with which we are not 
familiar at home, but which is to be found in almost every 
nation in Europe. 

The Lack of Political Consensus 

Few persons ever ask themselves why the bodies of men 
who assemble every year at the State House or the Capitol 
have power to make laws. It is not because they have more 
personal force or wisdom or virtue than any one else. A 
congress of scientific men may contain all these qualities in 
greater abundance, but it cannot change a single line in the 
statute-book. Is it because they represent the people ? 
But we all know that they occasionally pass laws which the 
people do not want, and yet we obey those laws without 
hesitation. Moreover, this answer only pushes the question 
one step further back, for why should we obey the people ? 
A few centuries ago nobody recognized any right on the part 
of the people to govern or misgovern themselves as they 
chose, or rather on the part of the majority to impose their 
will on the minority; and in many countries of the world no 
such right is recognized to-day. How does it happen that 
there is not a class of men among us who think that the legis- 
lature does not fairly represent the people, or who think 
that the right to vote ought to be limited by a certain edu- 
cational or property qualification, or by the profession of a 
certain creed ; and why does not some such class of men get 



FRANCE: PARTIES 1 59 

up a rival legislature ? The fact is that, while we may differ 
in regard to the ideal form of government, we are all of one 
mind on the question of what government is entitled to our 
actual allegiance, and we are all determined to yield to that 
government our obedience and support. In short, a common 
understanding or consensus in regard to the basis and form 
of the government is so universal here that we feel as if it 
were natural and inevitable; but in all countries this is not 
so. Such a consensus is the foundation of all political au- 
thority, of all law and order; and it is easy to see that if it 
were seriously questioned, the position of the government 
would be shaken, that if it were destroyed, the country 
would be plunged into a state of anarchy. 1 Now persons who 
do not accept the consensus on which the political authority 
of the day is based are termed in France Irreconcilables. 
Men of this sort do not admit the rightfulness of the existing 
government; and, although they may submit to it for the 
moment, their object is to effect a revolution by peaceful if 
not by violent means. Hence their position is essentially 
different from that of all other parties, for these aim only at 
directing the policy of the government within constitutional 
limits, and can be entrusted with power without danger to 
the fundamental institutions of the nation, while the Irrec- 
oncilables, on the contrary, would use their power to upset 
those institutions, and therefore cannot be suffered to get 
control of the state. They form an opposition that is incap- 
able of taking office, and so present a disturbing element, 
which in a parliamentary form of government throws the 
whole system out of gear. 2 

1 The revolution in Russia and its sequal is a forcible illustration of this 
truth. 

2 It is impossible to draw a sharp line between what is revolutionary and 
what is not; or to define exactly an Irreconcilable. The matter depends in 
fact upon the opinion of the community. Thus, before 1886, Home Rule 



l6o GREATER EUROPEAN GOVERNMENTS 

Another thing to be noticed about a consensus is that it 
cannot be created artificially, but must be the result of a 
slow growth and long traditions. Its essence lies in the fact 
that it is unconscious. The people of the United States, for 
example, could not, by agreement, give to a dictator the 
power of the Czar of Russia, for except in the presence of 
imminent danger he would have no authority unless the 
people believed in his inherent right to rule, and the people 
cannot make themselves believe in any such right simply by 
agreeing to do so. The foundation of government is faith, 
not reason, and the faith of a people is not vital unless they 
have been born with it. 1 Now, in France, the Revolution of 
1789 destroyed all faith in the political institutions of the 
past, and was unable to substitute anything else. It did, 
indeed, give birth to a code of law, and to an administrative 
system, both of which have taken a strong hold on the na- 
tion, and have survived every change in the government. 
These have been the permanent elements in France, and the 
only ones that acquired the blind force of tradition. They 
have supplied a machinery unshaken by political upheavals, 
and it is this that has made it possible for the country to 
pass through so many revolutions without falling into a state 
of anarchy. 2 But in regard to institutions of a purely politi- 

might fairly be said to have been revolutionary, and the Irish Home Rulers 
to have been Irreconcilables; but after Mr. Gladstone made Home Rule a 
practical question in English politics, it would have been absurd to call 
ParnelPs followers Irreconcilables. 

1 Curiously enough an exception to this principle, and almost a solitary 
one, is to be found in the history of the United States. The generation that 
framed the Constitution looked upon that document as very imperfect, but 
they clung to it tenaciously as the only defense against national dismember- 
ment, and in order to make it popular, they praised it beyond their own 
belief in its merits. This effort to force themselves to admire the Constitu- 
tion was marvelously successful, and resulted, in the next generation, in a 
worship of the Constitution, of which its framers never dreamed. 

2 Cf. Laflitte, pp. 208, 209. 



FRANCE: PARTIES l6l 

cal character, the nation has not been so fortunate, for the 
governments that followed the Revolution were not suffi- 
ciently durable to lay even a foundation for a general con- 
sensus, and the lack of continuity so thoroughly prevented 
the steady growth of opinion that only of late years have the 
people as a whole succeeded in acquiring a political creed. 
The result is that every form of government that has existed 
in France has had its partisans, who were irreconcilable 
under every other; while the great mass of the middle classes 
and the peasants had no strong political convictions, and 
were ready to support any government that maintained 
order. Thus the two Empires bequeathed to the Republic 
the group of Bonapartists, whereas the Monarchists were a 
legacy from the old regime and the reign of Louis Philippe. 
At present, the Right having accepted the Republic, and the 
irreconcilable elements disappearing or becoming insig- 
nificant, one of the chief obstacles to the formation of two 
great parties, one Conservative and the other Radical, has 
been removed. 1 

But this is only one of several obstacles, and the others are 
so great that it will probably be a long time before the sys- 
tem of groups breaks down in France, or is replaced by that 
of two political parties. 

French Political Opinions Theoretical 

In the first place, the Frenchman has been theoretical 
rather than practical in politics. He has tended to pursue an 
ideal, striving to realize his conception of a perfect form of 
society, and is reluctant to give up any part of it for the sake 
of attaining so much as lies within his reach. Such a tend- 
ency naturally gives rise to a number of groups, each with a 

1 During the present war, there has certainly been no strong recrudescence 
of irreconcilable opinion. 



1 62 GREATER EUROPEAN GOVERNMENTS 

separate ideal, and each unwilling to make the sacrifice that 
is necessary for a fusion into a great party. In short, the 
intensity of political sentiment tends to prevent the develop- 
ment of real political issues. To many Frenchmen, public 
questions have an absolute rather than a relative or practical 
bearing, and therefore they care more for principles and 
opinions than for facts. This tendency is shown in the pro- 
grammes of the candidates, which are apt to be philosophic 
documents instead of statements of concrete policy, and, 
although published at great length, often give a compara- 
tively small idea of the position of the author on the im- 
mediate questions of the day. 1 It is shown also in the 
newspapers, and the use that is made of them. An Anglo- 
Saxon reads the newspapers chiefly for information about 
current events, and as all the papers contain very much the 
same news, he habitually reads only one. But the French 
papers contain far less news, and as the Frenchman reads 
them largely for the sake of the editorials, he commonly 
reads several in order to compare the opinions they express. 
It is partly on account of this mental attitude, and partly 
owing to the absence of the habit of self-government, and the 
lack of sympathy between different parts of the country, 

1 Lebon, France as It Is, p. 85. 

Abstracts of all the electoral programmes issued by the successful candi- 
dates for the Chamber of Deputies at the elections of 1889 and 1893, together 
with the results of the ballots, have been published by Duguet, under the 
titles Les Deputes et les Cahiers Electoraux. These volumes are very instruc- 
tive; and a perusal of them shows that the programmes of the Radicals are 
much longer and less vague than the others, but often demand measures 
which lie out of the domain of practical politics, such as revision of the Con- 
stitution, abolition of the Senate, elective judiciary, etc. The programmes 
gave a very good idea of the candidate's general turn of mind; and those of 
the Radicals may be said to contain their conception of the ideal state of 
politics or of society. The Radicals are, indeed, the only group among the 
Republicans that can be said to have anything like a positive programme, 
and this is the source both of their strength and their weakness. 



FRANCE: PARTIES 1 63 

that the French have not organized readily in politics. This 
is the more curious because in military matters they organize 
more easily than any other people in the world; and it is no 
doubt the military instinct, as well as the want of confidence 
in their own power of political organization, that disposes 
them to seek a leader and follow him blindly after he has 
won their confidence. 1 The inability to organize readily in 
politics has this striking result, that vehement as some of the 
groups are, and passionate as is their attachment to their 
creeds, they have made little effort to realize their aims by 
associating together their supporters in all parts of the coun- 
try for concerted action. In fact, there may be said to be no 
national party organizations in France. 2 The various groups 
into which the deputies are divided have, as a rule, no exist- 
ence whatever outside of Parliament, the candidates for 
seats merely calling themselves, in general terms, Moder- 
ates, Radicals, Socialists or simply Republicans without 
further qualification, and attaching themselves to a particu- 
lar group after the Chamber has met. Moreover, the pro- 
grammes, which are drawn up by each candidate for himself, 
are only individual confessions of faith, and are all different, 
so that there is no policy which any party as a whole is 
pledged to support. Before the opening of the campaign, 
indeed, party gatherings or banquets take place, and 
speeches are made, but until recent elections, no common 
platform of principles has been issued except by the Social- 
ists. 3 It is after the campaign has begun, however, that the 
absence of party organization is most clearly seen. Then the 

1 Cf. Channes, Letter of Aug. 22, 1885. 

2 Cf. Lebon, France as It Is, p. 75; Theodore Stanton in the North 
American Rev., civ. 471. This contrasts strangely with the United States, 
where the machinery of a party has sometimes shown more vitality than its 
principles. 

3 Daniel, UAnnee Politique, 1893, pp. 254-280. 



164 GREATER EUROPEAN GOVERNMENTS 

struggle is conducted in each electoral district with very 
little regard to the rest of the country, and in fact each dis- 
trict appears like a separate nation engaged in a distinct 
contest of its own. 1 Political effort becomes localized, and 
except for the candidates themselves, who confine their 
labors to their constituencies, it has often happened that 
scarcely a man of prominence opened his mouth. 

Effects of French Political Mechanism 

One might suppose that under a parliamentary form of 
government party organization would hardly be required, 
and that, as in England, the need of political cohesion would 
be to a great extent supplied by a strong ministry that really 
led Parliament and the nation. But here we meet with some 
of the other causes that tend to produce a multiplicity of 
groups — causes that spring from certain of the minor 
French institutions which were referred to in the beginning 
of the first chapter as inconsistent with the parliamentary 
system. Three of these are especially important — the 
method of electing deputies, the system of committees in the 
chambers, and the practice of interpellations. 

The Method of Electing Deputies 

In France the scrutin de liste, or the election of all the 
deputies from a department on one ticket, and the scrutin 
d'arrondissenient, or the use of single electoral districts, have 
prevailed alternately, the latter being in force at the present 
day. 2 But under both systems an absolute majority of all 
the votes cast is required for election. If there are more than 
two candidates in the field, and no one of them gets such a 
majority, a second vote, called the ballotage, is taken two 

1 Comte de Chaudordy, La France en 1889, p. 89. 

2 See, however, note on p. 17, ante. 



FRANCE: PARTIES 1 65 

weeks later, and at this a plurality is enough to elect. 1 Now 
it is clear that such a procedure encourages each political 
group to nominate a separate candidate for the first ballot. 
Suppose, for example, that there are Reactionary and 
Moderate Republican candidates in the field, and that the 
Radicals prefer the Republican to the Reactionary, still they 
have nothing to lose by running a candidate of their own on 
the first ballot, for if the Reactionary can poll more votes 
than both his rivals combined, he will be elected in any 
event; if he cannot, he will not be elected whether the Rad- 
icals put up a candidate of their own or not. In this last 
case, the first ballot will have counted for nothing, and the 
Radicals will be able to vote for the Moderate Republican 
at the ballotage, and elect him then. They are likely, indeed, 
to gain a positive advantage by nominating a separate can- 
didate, for if they succeed in polling a large vote on the first 
ballot, they are in an excellent position to wring concessions 
from the Moderates as a price of their support. 

Cumbrous as it is, this system of voting dates back to the 
election of the States General in 1789, and, with a couple of 
short breaks, has been maintained in France ever since. 2 
The idea that a representative ought to be the choice of a 

1 Law of June 16, 1885, Art 5. (This article was not repealed by the Law 
of Feb. 13, 1889.) By the same article a quarter as many votes as there 
are voters registered is required for election on the first ballot. 

According to strict parliamentary usage, the term ballotage is applied 
only to cases where, at the final trial, the voting is confined by law to the 
two names highest on the poll at the preceding ballot, but the word is popu- 
larly used for any final ballot where a plurality is decisive. 

For the choice of a senator by the electoral college of a department, the 
votes of a quarter of the college, and a majority of all the votes actually 
cast, are required on the first two ballots, while on the third a plurality is 
enough. Law of August 2, 1875, Art. 15. The election of delegates to the 
college by the municipal councils is conducted in the same manner. Law 
of Dec. 9, 1884, Art. 8. 

8 Poudra et Pierre, liv. ii, ch. vii. 



1 66 GREATER EUROPEAN GOVERNMENTS 

majority of the people seems, indeed, to be natural in democ- 
racies, for we find it put in practice elsewhere. Thus, in the 
United States, a majority vote was formerly very commonly 
required for election, but it is instructive to notice that it was 
found to hinder the smooth working of two political parties, 
and has been generally though not quite universally aban- 
doned. 1 The fact that election by majority did not give rise 
to a multiplicity of parties in America shows that by itself 
it does not produce that result, where the other influences 
favor the development of two parties; but it is nevertheless 
clear that where a number of groups exist, it tends to foster 
them, and prevent their fusing into larger bodies. 2 The 
French system has been praised on the ground that it saves 
the people from the yoke of huge party machines, and en- 
ables them to select their candidates more freely. 3 This is 
true, and it is a great advantage. But the converse is also 
true; the system tends to prevent the formation of great 
consolidated parties, and that is the evil from which parlia- 
mentary government suffers in France to-day. 4 

1 Stimson, Am. Statute Law, § 232. In Massachusetts, election by plu- 
rality was introduced in 1855. Const, of Mass., Amendments, Art. xiv. 
For the previous law, see Const., pt. ii, ch. i, sec. ii, Art. iv; ch. ii, sec. xiii, 
Art. iii; sec. ii, Art. i; Rev. Stats., ch. iv, sec. xiii. 

2 At the elections of 1885, which were held under the system of scrutin 
de liste, there were two Republican lists of candidates in almost all the 
departments. G. Channes, Letter of Oct. 30, 1885. At the elections of 
1889 and 1893, held under the scrutin d'arrondissement, there were two Re- 
publican candidates in a large proportion of the districts, the total number 
of candidates for a single seat running as high as ten. Duguet, Les Deputes 
et les Cahiers Elector aux en i88g; Id., 1893. And see Tableau des Elections 
d la Chambre des Deputes, dresse aux Archives de la Chambre. 

3 Alfred Naquet, " The French Electoral System," in the North Am. 
Rev., civ. 467-468. 

4 It is not a little curious that just at the time, when the English system 
of two parties was thought by many people to be in danger of breaking up, 
a motion should be made in the House of Commons to introduce election 
by majority vote and second ballot. Such a motion was made by Mr. 
Daziel on April 5, 1895. 



FRANCE: PARTIES 1 67 

The Committees in the Chambers 

The system of committees in the chambers is a still more 
important matter. Each of the French chambers is divided 
into sections called bureaux, of which there are nine in the 
Senate and eleven in the Chamber of Deputies. 1 The bu- 
reaux are of equal size, and every member of the Chamber 
belongs to one and only one of them, the division being made 
afresh every month by lot. This is a very old institution in 
France, a relic of a time before parliamentary government 
had been thought of; for not only do we find it in the As- 
sembly of Notables and the States General that met on the 
eve of the Revolution, 2 but it existed in the ecclesiastical 
assemblies, and to some extent in the States General, at a 
much earlier date. 3 The use of the lot is, indeed, a survival 
from the Middle Ages, when it was a common method of 
selecting officials. 4 The bureaux meet separately and have 
three functions. The first is that of making a preliminary 

1 For the constitution of the bureaux and the election of the committees, 
see Poudra et Pierre, liv. v, chs. ii and iii; Pierre, Traite de Droit Politique, 
Electoral et Parliamentaire, 4th ed. with supp., book vi, § 2. Reginald Dick- 
inson, Summary of the Constitution and Procedure of Foreign Parliaments, 
2d ed., pp. 393-366. 

These bureaux must not be confounded with the Bureau of the Cham- 
ber, which consists of the President, the Vice-Presidents, and the Secre- 
taries. The habit in France of using the same word with different meanings 
is liable to be the source of no little confusion to the students of her insti- 
tutions. 

2 Poudra et Pierre, § 976. 

3 Sciout, Histoire de la Constitution Civile du Clerge, p. 36. Judge Francis 
C. Lowell pointed out to me that the States General which met at Tours 
in 1484 was divided into six sections by provinces. See a journal of this body- 
by Jehan Masselin, in the Collection de Documents inedits sur VHistoire de 
France publies par ordre du Roi, Paris, 1835, pp. 66-73. 

4 The chief relic of the lot left in Anglo-Saxon institutions is, of course, 
its use in the selection of the jury — a survival which is due to the fact 
already pointed out, that the English royal justice developed at an early 
period. 



1 68 GREATER EUROPEAN GOVERNMENTS 

examination of the credentials of members of the Chamber, 
which are divided among them for the purpose. The second 
is that of holding a preliminary discussion on bills brought 
into the Chamber, before they are referred to a committee; 
but as a matter of fact this discussion is perfunctory, and is 
limited to finding out in a general way what members of the 
bureau favor or oppose the bill. 1 The third and most im- 
portant function of the bureaux is the election of committees, 
for with some exceptions all the committees of both cham- 
bers are selected in the same way. Each of the bureaux 
chooses one of its own members, and the persons so elected 
together constitute the committee. In the case of the more 
important committees it is sometimes desirable to have a 
larger number of members, and if so the bureaux choose in 
like manner two or even three members apiece — the cham- 
ber in each case directing, by its rules or by special vote, 
the number of members to be elected. Thus the com- 
mittee on the budget, which is the most important one of 
the year, consists of three members chosen by each of the 
bureaux in the Chamber of Deputies, and contains, there- 
fore, thirty- three members; while the corresponding com- 
mittee in the Senate contains eighteen members, or two 
from each bureau. 

The committee on the budget and the one appointed to 
audit the accounts of the government have long been per- 
manent, remaining unchanged for a year. With these ex- 
ceptions every measure is in theory referred to a special 
committee elected by the bureaux for the purpose; but as 
there are certain to be in every session a number of bills that 
cover very much the same ground, a rigid application of this 
principle would result in inconsistent reports on the same 
matter by different committees, and would throw the work 

1 Dupriez, ii. 404. 



FRANCE: PARTIES 1 69 

of the Chamber into utter confusion. There have, there- 
fore been a number of committees that are treated in the 
Chamber as virtually permanent, and of late years these 
have tended to increase until there are a dozen and a half of 
them. There has also been a tendency for the Chamber 
itself to elect committees by scrutin de liste instead of by the 
bureaux. 

Now the bureaux, being created anew every month, ac- 
quire no corporate feeling, and hence have no real leaders. 
Owing partly to this fact they do not choose freely, and the 
chief of the parliamentary groups meet and barter away the 
places on the important committees, which are thus cut and 
dried beforehand. 1 But whether the choice of committee- 
men is really made by the bureaux or dictated by the chiefs 
of the groups, the main point to notice is that the system is 
inconsistent with the parliamentary form of government. 
The cabinet cannot exert the same influence over an election 
conducted in this way that it could over one made by the 
Chamber in open session. In the latter case it might insist 
on the choice of a majority of the committee from among its 
own friends, and make of the matter a cabinet question; 
but it cannot treat the failure of several irresponsible sec- 
tions of the Chamber to act in accordance with its wishes as 
an expression of want of confidence by the Chamber as a 
whole. The result is that the committees are not ordinarily 
nominated by the cabinet, or necessarily in sympathy with 
it; and yet all measures, including those proposed by the 
government, are referred to them to revise as they think 
best. But if the ministers are to be responsible for directing 
the work of the Chamber, they ought to have a policy of 
their own and stand or fall on that. They ought to be at 
liberty to determine their own course of action, and to pre- 
1 Cf. Simon, Nos Hommes d'Etat, pp. 41, 241. 



170 GREATER EUROPEAN GOVERNMENTS 

sent their measures to Parliament in a form that they 
entirely approve. 

If a committee has power to amend government bills, the 
ministers must either assume the burden of trying to per- 
suade the Chamber to reverse the amendments, with all the 
influence of the committee against them; or they must take 
the risk of opposing the bill as reported, although they still 
approve of many of its features; or finally they must accept 
the bill as it stands, and become responsible for a measure 
with which they are not themselves fully satisfied. The 
committees in fact use their power without shrinking, and 
the annual budget, for example, has been compared to a 
tennis-ball sent backward and forward between the minister 
and the committee until a compromise can be reached. 1 

M. Dupriez, in his excellent work on the ministers in the 
principal countries of Europe and America, paints in very 
strong colors the evils of the French committee system. He 
points out how little influence the ministers have with the 
committees, who often regard them almost as the represen- 
tatives of a hostile power in the state. 2 He shows that while 
the ministers have no right to be present at committee meet- 
ings, and are invited to attend only when they wish to ex- 
press their views, the committees claim a right to examine 
the administrative offices, insist on seeing books and papers, 
and volunteer advice. 3 So little respect, indeed, do the 
committees pay to the opinions of the cabinet, and so freely 
do they amend its bills, that, as M. Dupriez sarcastically 
remarks, the government and the committee are never in 
perfect accord except when the former submits to the latter. 4 
He says, moreover, that when a bill comes up for debate the 

1 Simon, Souviens toi du Deux Decembre, p. 314. 

2 Vol. ii. 406-407. 

3 Id., pp. 39s, 405, 423-424, 438-439- 

4 Id., pp. 405-406, 412. 



FRANCE: PARTIES 1JI 

reporter of the committee is a rival who has great influence 
with the Chamber, while the deputies are inclined to regard 
the ministers with jealousy and defiance. 1 Nor do the woes 
of the cabinet end here, for its bills are quite freely amended 
during the debate on the motion of individual deputies. 2 

Of all the committees, the most domineering and vex- 
atious is that on the budget. This committee seems to take 
pride in criticizing the estimates and making them over, 
both as regards income and expenditures, while each mem- 
ber exerts himself to add appropriations for the benefit of 
his own constituents, so that when the report is finally made 
the government cannot always recognize its own work. 3 In 
strong contrast with all this is Dupriez's description of the 
procedure on the budget in England. 4 There the authority 
of the ministers is expressly protected by the standing order 
of the House of Commons to the effect that no petition or 
motion for the expenditure of the public revenue shall be 
entertained except on the recommendation of the crown; 
and in accordance with a firmly established practice pro- 
posals for national taxes originate only with the govern- 
ment. The comparison of the English and French methods 
of dealing with the budget goes far to explain the difference 
in the position of the two cabinets. Such a state of things as 
exists in France cannot fail to lessen the authority and dig- 
nity of the ministers, and place them at the mercy of the 
committees. It prevents them from framing their own pro- 
gramme, and insisting that the deputies shall accept or 
reject it as it stands; and thus, instead of compelling the 
majority to act solidly together under the leadership of the 
cabinet, it allows any deputy to use his place on a committee 
as a means of urging his own personal views. Hence it tends 

1 Dupriez, ii. 411. 3 Id., pp. 425-426. 

2 Id., p. 412. 4 Id., i. 110-112. 



172 GREATER EUROPEAN GOVERNMENTS 

to dislocate the majority and break it into sections, with 
policies more or less out of harmony with each other. While, 
therefore, the French scheme of committees has good points, 
and some features that might be very valuable under an- 
other form of government, it is clearly incompatible with the 
parliamentary system. 1 

Interpellations 

The habit of addressing interpellations to the ministers 
has also a bearing on the stability of the cabinet and the 
subdivision of parties; for it cannot be repeated too often 
that these things are inseparable. The existence of the min- 
istry depends on the support of the majority, and if that is 
compact and harmonious, the ministry will be strong and 
durable; if not, it will be feeble and short-lived. The 
converse is also true. The cohesive force that unites the 
majority is loyalty to the cabinet and submission to its 
guidance; but if the cabinets are weak, or are constantly 
overthrown at short intervals, they cannot acquire the au- 
thority that is necessary to lead the majority and weld it 
into a single party. This is especially the case when the 
crises occur over matters which are not of vital consequence 
to the bulk of the followers of the government, and yet that 
is precisely the state of things that interpellations tend to 
create. 

It is of the essence of parliamentary government that the 
majority should support the ministers so long, and only so 
long, as it approves of their course, and this means their 
course as a whole, in administration as well as in legislation; 
for the parliament, having the fate of ministers in its hands, 

1 Lebon, UAllemagne, p. 88, remarks that the bureaux in the French 
Chamber were intended to subdivide the factions, and accomplish this only 
too well. 



FRANCE: PARTIES 173 

holds them responsible for all their acts, and has gradually 
extended its supervision over the whole field of government. 
Now a parliament can judge of the legislative policy of the 
cabinet by the bills it introduces, but it is not so easy to get 
the information necessary for a sound opinion on the effi- 
ciency of the administration. It is largely to satisfy this 
need that a practice has grown up in the House of Com- 
mons of asking the ministers questions, which may relate to 
any conceivable subject, and afford a means of putting the 
cabinet through a very searching examination. Of course 
the privilege is freely used to harass the government, but the 
answer is not followed by a general debate, or by a vote, ex- 
cept in the unusual case where a motion to adjourn is made 
for the purpose of bringing the matter under discussion. 1 

A similar practice has been adopted in France, and ques- 
tions are addressed to the ministers by members who really 
want information. But another kind of question has also 
developed, which is used not to get information, but to call 
the cabinet to account, and force the Chamber to pass judg- 
ment upon its conduct. This is the interpellation. 2 In form 

1 The motion to adjourn is the only one that is in order, and since 1882 
its use has been carefully limited. May, Pari. Practice, 10th ed., p. 240 et seq. 
In this form or some other a vote is occasionally taken on a single detail of 
administration. The most famous instances of late years have been the 
affair of Miss Cass in 1887, where the House of Commons expressed its 
disapproval of the government's refusal to make an inquiry by voting to 
adjourn, but where no member of the cabinet felt obliged to resign; and 
the defeat of Lord Rosebery's ministry in 1895. In the last case a motion 
was made to reduce the salary of the Secretary of State for War, in order 
to draw attention to the lack of a sufficient supply of ammunition, and the 
motion was carried; but there can be no doubt that the cabinet would not 
have resigned if its position had not already been hopeless. 

In the House of Lords questions can always be debated. May, p. 206. 

2 For the rules and practice in the case of questions, see Poudra et Pierre, 
liv. vii., ch. iii., and Supp. 1879-80, § 1539. In the case of interpellations, 
id., liv. vii., ch. iv. 



174 GREATER EUROPEAN GOVERNMENTS 

it is similar to the question, but the procedure in the two 
cases is quite different. A question can be addressed to a 
minister only with his consent, whereas the interpellation is a 
matter of right, which any deputy may exercise, without 
regard to the wishes of the cabinet. The time, moreover, 
when it shall be made is fixed by the Chamber itself, and 
except in matters relating to foreign affairs, the date cannot 
be set more than a month ahead. But by far the most im- 
portant difference consists in the fact that the author of the 
question can alone reply to the minister, no further discus- 
sion being permitted, and no motion being in order; while 
the interpellation is followed both by a general debate and 
by motions. These are in the form of motions to pass to the 
order of the day, and may be orders of the day pure and 
simple, as they are called, which contain no expression of 
opinion, or they may be what are termed orders of the day 
with a motive, such as "the Chamber, approving the dec- 
larations of the Government, passes to the order of the day." 
Several orders of this kind are often moved, and they are put 
to vote in succession. The ministers select one of them 
(usually one proposed by their friends for the purpose), and 
declare that they will accept that. If it is rejected by the 
Chamber, or if a hostile order of the day is adopted, and the 
matter is thought to be of sufficient importance, the cabinet 
resigns. This is a very common way of upsetting a ministry, 
but it is one which puts the cabinet in a position of great dis- 
advantage, for a government would be superhuman that 
never made mistakes, and yet here is a method by which any 
of its acts can be brought before the Chamber, and a vote 
forced on the question whether it made a mistake or not. 
Moreover, members of the Opposition are given a chance to 
employ their ingenuity in framing orders of the day so as to 
catch the votes of those deputies who are in sympathy with 



FRANCE: PARTIES 1 75 

the cabinet, but cannot approve of the act in question. 1 
Now if adverse votes in the Chamber are to be followed by 
the resignation of the cabinet and the formation of a new 
one, it is evident that to secure the proper stability and per- 
manence in the ministry, such votes ought to be taken only 
on measures of really great importance, or on questions that 
involve the whole policy and conduct of the administration. 
It is evident also that they ought not to be taken hastily, or 
under excitement, but only after the Chamber has deliber- 
ately made up its mind that it disapproves of the cabinet 
and that the country would on the whole be benefited by a 
change of ministers. The reverse of all this is true of the 
French system of interpellations, and a cabinet which in the 
morning sees no danger ahead, and enjoys the confidence of 

1 A very good example of the various shades of praise or blame that may- 
be expressed by orders of the day can be found in the Journal Officiel for 
July 9, 1893. There had been a riot in Paris, which had not been suppressed 
without violence and even bloodshed. The police were accused of wanton 
brutality, and an interpellation on the subject was debated in the Chamber 
of Deputies on July 8. The order of the day quoted in the text, " The 
Chamber, approving the declarations of the government, passes to the order 
of the day," was adopted, but the following were also moved: 

" The Chamber, disapproving the acts of brutality of which the police 
have been guilty, requests the government to give to the police instructions 
and orders more conformable to the laws of justice and humanity, and passes 
to the order of the day." 

" The Chamber, disapproving the proceedings of the police, passes to 
the order of the day." 

" The Chamber, approving the declarations of the government, and per- 
suaded that it will take measures to prevent the violence of the police of- 
ficials, passes to the order of the day." 

" The Chamber, censuring the policy of provocation and reaction on the 
part of the government, passes to the order of the day." 

" The Chamber, hoping that the government will give a prompt and 
legitimate satisfaction to public opinion, passes to the order of the day." 

" Considering that the government has acknowledged from the tribune 
that its policy has caused in Paris ' sad occurrences,' ' deeds that must 
certainly be regretted,' and ' some acts of brutality,' the Chamber takes 
notice of the admission of the President of the Council, demands that the 



176 GREATER EUROPEAN GOVERNMENTS 

the Chamber and the nation, may be upset before nightfall 
by a vote provoked in a moment of excitement on a matter 
of secondary importance. 

The frequency with which interpellations are used to up- 
set the cabinet may be judged by the fact that out of the 
twenty-one ministries that resigned in consequence of a vote 
of the Chamber of Deputies during the years 1879-1896, ten 
went to pieces on account of orders of the day moved after 
an interpellation, or in the course of debate, 1 and since 1896 
the proportion has remained substantially the same. Sev- 
eral of these orders covered indeed, the general policy of the 
cabinet, but others — like the one relating to the attend- 
ance of the employees of the state railroads at a congress 
of labor unions, which occasioned the resignation of Casimir- 

exercise of power shall be inspired by the indefeasible sentiments of justice, 
of foresight, and of humanity, and passes to the order of the day." 

" The Chamber, convinced that the government of the Republic ought 
to make the law respected and maintain order, approving the declarations 
of the government, passes to the order of the day." 

" The Chamber, regretting the acts of violence on the part of the police, 
and taking notice of the declarations of the government, passes to the order 
of the day." 

" The Chamber, approving the declaration whereby the government has 
announced its desire to put an end to the practices and habits of the police 
which have been pointed out, passes to the order of the day." 

" The Chamber, convinced of the necessity of causing the laws to be 
respected by all citizens, passes to the order of the day." 

In this case, by voting priority for the first of these motions and adopt- 
ing it, the Chamber avoided the snares prepared for it by the ingenious 
wording of the others. 

1 Cf. Haucour, Gouvernements et minister es de la iu e republique franqaise 
(i8/o-i8gj)', Muel, Gouvernements, ministeres et constitutions de la France 
depuis cent ans. 

Among the resignations brought about in this way, I have counted that 
of Rouvier's cabinet in 1887, although this was caused not by the vote of 
an order of the day, but by the refusal of the Chamber to postpone the de- 
bate on an interpellation, and although the cabinet continued to hold office 
for a few days pending the resignation of President Grevy. 



FRANCE: PARTIES 1 77 

Perier's ministry in May, 1894 — had no such broad signifi- 
cance. Moreover, the production of actual cabinet crises is 
by no means the whole evil caused by interpellations. The 
enfeebling of the authority of the ministers by hostile votes 
about affairs on which they do not feel bound to stake their 
office is, perhaps, an even more serious matter, for no cabinet 
can retain the prestige that is necessary to lead the cham- 
bers in a parliamentary government, if it is to be constantly 
censured and put in a minority even in questions of detail. 
The ministers are not obliged, it is true, to answer interpel- 
lations, 1 but unless some reason of state can be given for 
refusing, such as that an answer would prejudice diplomatic 
negotiations, a refusal would amount to a confession of 
error, or would indicate a desire to conceal the fact, and 
would weaken very much the position of the cabinet. 

The large part that interpellations play in French politics 
is shown by the fact that they arouse more popular interest 
than the speeches on great measures; 2 and, indeed, the 
most valuable quality for a minister to possess is a ready 
tact and quick wit in answering them. 3 

The first two institutions referred to as not in harmony 
with parliamentary government — that is, the method of 
electing deputies and the system of committees in the cham- 
bers — have real merit. Both tend to check the tyranny of 
party, and under a form of government where the existence 
of two great parties was not essential, they might be very 
valuable. But, except in a despotism, the interpellation fol- 
lowed by a motion expressing the judgment of the Chamber 
is a purely vicious institution. It furnishes the politicians 
with an admirable opportunity for a display of parliamen- 

1 Poudra et Pierre, § 1555. 

2 Simon, Nos Hommes d'Etat, p. 27. 

3 Simon, Dieu, Patrie, Liberie, p. 379. 



178 GREATER EUROPEAN GOVERNMENTS 

tary fireworks; but it is hard to see how, under any form of 
popular government, it could fail to be mischievous, or 
serve any useful purpose that would not be much better 
accomplished by a question followed by no motion and no 
vote. The plausible suggestion has been made that the ad- 
ministration, being free from supervision by the courts of 
law, can be brought to account for its acts only in this way; l 
but surely the same result could be as well accomplished by 
the simpler process of the question, and it is hard to see any 
reason for imperiling the existence or the prestige of the 
cabinet to rectify some matter of trifling consequence. 

Jealousy and Distrust of the Ministers 

The practice arose from the fact that, owing to the im- 
mense power of the executive in France, and the frequency 
with which that power has been used despotically, the legis- 
lature has acquired the habit of looking on the cabinet 
officers as natural enemies, to be attacked and harassed as 
much as possible. 2 But such a view, which is defensible 
enough when the ministers are independent of the parlia- 

1 See Vicomte d'Avenel, " La Reforme Administrative — La Justice," 
Revue des Deux Mondes, June 1, 1889, pp. 595-596. 

2 M. Dupriez, in the work already cited (ii. 253 et seq.), has explained the 
strength of this feeling by a most valuable study of the history of the rela- 
tions between the ministers and the legislature in France. He points out 
that it existed at the outbreak of the Revolution, for the cahiers or state- 
ments of grievances prepared by the meetings of electors held to choose 
members of the States General in 1789 express a widespread dislike and 
distrust of all ministers as such. He then shows how the Constituent As- 
sembly tried to curtail the power of the ministers, and reduce their func- 
tions to a simple execution of its own orders. It is unnecessary here to follow 
the subject in detail. It is enough to remark that a large part of the political 
history of France since the Revolution is filled with struggles for power 
between the executive and the legislature, in which the former has twice 
won a complete victory, and deprived the representatives of the people of 
all influence in the state. Under these circumstances the suspicion and 
jealousy of the cabinet shown by Liberal statesmen is not surprising. 



FRANCE: PARTIES 1 79 

ment, becomes irrational when they are responsible to it, 
and bound to resign on an adverse vote. 

Strange as it may seem, the development of interpella- 
tions has coincided very closely with that of parliamentary 
government; x and, in fact, the French regard the privilege 
as one of the main bulwarks of political liberty. It is this 
same feeling of antagonism to the government that has 
given rise to the overweening power of the committees in 
the Chamber, and their desire to usurp the functions of the 
ministers. The extent to which this feeling is carried by the 
Radicals is shown by the proposal made some years ago to 
divide the whole Chamber into a small number of per- 
manent grand committees, such as existed in 1848, in order 
to bring the ministers even more completely under the con- 
trol of the deputies; the ideal of the Extreme Radicals being 
the revolutionary convention, which drew all the powers of 
the state as directly and absolutely as possible into its own 
hands. 2 The less violent Republicans are, no doubt, very 
far from accepting any such ideal, but still they cannot shake 
out of their minds the spirit of hostility to the administra- 
tion which has been nurtured by long periods of absolute rule. 
They fail to realize that when the ministry becomes respon- 
sible to the deputies, the relations between the executive and 
the legislature are radically changed. The parliamentary 
system requires an entire harmony, a cordial sympathy, and 

1 The practice was first regularly established at the accession of Louis 
Philippe, the period when cabinets became thoroughly responsible to the 
Chamber; and it was freely used during the Republic of 1848. After the 
Coup oVEtat it was, of course, abolished; but toward the end of his reign 
Napoleon III, as a part of his concessions to the demand for parliamentary 
institutions, gradually restored the right of interpellation. Finally, under 
the present Republic the right has been used more frequently than ever 
before. See Poudra et Pierre, §§ 1544-1549; Dupriez, ii. 305, 317-318. 

2 Cf. De la Berge, " Les Grands Comites Parlementaires," Revue des 
Deux Mondes, Dec. 1, 1889. 



l8o GREATER EUROPEAN GOVERNMENTS 

a close cooperation between the ministers and the Chamber; 
and to the obligation on the part of the cabinet to resign 
when the majority withdraws its approval, there corre- 
sponds a duty on the part of the majority to support the 
ministers heartily so long as they are retained in office. Par- 
liamentary government, therefore, cannot be really success- 
ful in France until a spirit of mutual confidence between the 
cabinet and the Chamber replaces the jealousy and distrust 
that now prevail. 

A comparison of the political history of France and Eng- 
land during corresponding years shows to what extent the 
French procedure has interfered with discipline and disinte- 
grated the parties. In England the Liberals came into power 
after the elections of 1892 with a small majority in the House 
of Commons; and, although the supporters of the govern- 
ment were far from harmonious, were, in fact, jealous of each 
other and interested in quite different measures, the perfec- 
tion of the parliamentary machinery enabled the ministers 
to keep their followers together and maintain themselves in 
office for three years. In France, on the other hand, the 
elections of 1893 produced a majority which, if even smaller, 
was far more homogeneous; and indeed, if we compare the 
position of some of the outlying groups with that of certain 
sections of the English Liberal party, it is fair to say that the 
majority in France was both larger and more homogeneous. 
Yet within two years this majority suffered three cabinets 
which represented it to be overthrown on interpellations 
about matters of secondary importance, and finally be- 
came so thoroughly disorganized that it lost control of the 
situation altogether. 



FRANCE: PARTIES l8l 

Results of the Condition of Parties 

We have surveyed some of the causes of the condition of 
political parties in France. Let us now trace a few of its 
results. In the earlier years, the presence of the Reaction- 
aries deprived cabinet crises of the significance they might 
otherwise possess. The defeat of the ministers did not mean 
the advent to power of a different party, because there was 
no other party capable of forming a cabinet — not the Re- 
actionaries, for they were irreconcilable and hostile to the 
Republic, and of late years have been far too few in num- 
bers; nor those Republicans who helped the Right to turn 
out the ministers, because by themselves they did not con- 
stitute a majority of the Chamber. Although the Reaction- 
aries have now practically disappeared the condition of the 
groups is still such that a new cabinet is obliged to seek its 
support mainly in the ranks of the defeated minority, and 
hence is usually formed from very much the same material 
as its predecessor. In fact, a number of the old ministers 
have generally kept their places, at most an attempt being 
made to gain a little more support from the Right or Left by 
giving one or two additional portfolios to the Moderates, 
Radicals, or Socialists. 1 

When a ministry falls, the parliamentary cards are 
shuffled, a few that have become too unpopular or too 
prominent are removed, and a new deal takes place. So 
true is this, that out of the twenty-four ministries that suc- 
ceeded each other from the time President MacMahon 
appointed a Republican cabinet in 1877 until 1897, onr y 
three contained none of the retiring ministers, the aver- 

1 Lebon, France as It Is, p. 94. 



1 82 GREATER EUROPEAN GOVERNMENTS 

age proportion of members retained being about two- 
fifths. 1 

Now, the fact that the fall of the cabinet does not involve 
a change of party has two important effects: by removing 
the fear that a hostile opposition will come to power, it de- 
stroys the chief motive for discipline among the majority; 2 
and by making the Chamber feel that a change of ministers 
is not a matter of vital consequence, it encourages that body 
to turn them out with rash indifference. The result is that 
the cabinets are extremely short-lived; during the forty 
years between 1875 and 1914 there were fifty of them, so 
that the average duration of a French cabinet has been a 
little less than ten months. 3 The same fact explains, more- 
over, the persistence of the system of interpellations, for if a 
change of ministry does not imply a different programme, 
there is no self-evident impropriety in overthrowing a cabi- 
net on a question that does not involve a radical condem- 
nation of its policy. 

The Cabinet a Coalition and therefore Weak 

The subdivision of the Republican party into separate 
groups has also an important bearing on the character of the 
ministry. Instead of representing a united party, the cabi- 
net must usually rely for support on a number of these 
groups, and the portfolios must be so distributed as to con- 
ciliate enough of them to form a majority of the Chamber. 4 

1 Cf. Haucour, Gouv. et Min.; Muel, Gouv., Min. et Const.; Dupriez, 
ii- 338, 343- The three exceptions were the cabinets of Brisson in 1885, 
Bourgeois in 1895, and Meline in 1896. 

2 This is very clearly pointed out by Dupriez, Les Ministres, ii. 390. 

3 I have not counted the reappointment of the Dupuy ministry on the 
election of Casimir-Perier to the presidency as the formation of a new cabinet. 

4 Only on two or three occasions has the cabinet been supported by a 
group which has contained by itself anything like a majority of the deputies. 



FRANCE: PARTIES 1 83 

As a rule, therefore, the cabinet is in reality the result of a 
coalition, and suffers from the evils to which bodies of that 
kind are subject. The members tend to become rivals 
rather than comrades, and each of them is a little inclined to 
think less of the common interests of the cabinet than of his 
own future prospects when the combination breaks up. 1 
Such a government, moreover, is essentially weak, for it can- 
not afford to refuse the demands of any group whose defec- 
tion may be fatal to its existence. 2 The ministers are not at 
the head of a great party that is bound to follow their lead, 
and yet they must secure the votes of the Chamber or they 
cannot remain in office. Hence they must seek support as 
best they may, and as they cannot rule the majority, they 
are constrained to follow it; 3 or rather they are forced to 
conciliate the various groups, and, as the members of the 
groups themselves are loosely held together, they must grant 
favors to the individual deputies in order to secure their 
votes. This is not a new feature in French politics. It is 
said that during the reign of Louis Philippe, the government 
kept a regular account with each deputy, showing his votes 
in the Chamber on one side, and the favors he had been 
granted on the other, so that he could expect no indulgence 
if the balance were against him. 4 Nor has the cause of the 
evil changed. It is the same under the Third Republic that 
it was under the Monarchy of July, for in both cases the lack 
of great national parties with definite programmes has made 
the satisfaction of local and personal interests a necessity. 

1 Cf. Dupriez, ii. 348-349. Lebon, France as It Is, p. 85, speaks of the 
never-ending struggles for mastery within the cabinet. 

2 Cf. Dupriez, ii. 347~348, 434-435- 

3 Cf. Simon, Nos Hommes d'Etat, ch. vii, p. iii. 

4 Hello, Du Regime Constitutional, quoted by Minghetti, / Partiti 
Politici, p. 101; and see G. Lowes Dickinson, Revolution and Reaction in 
Modern France, pp. 11 8-1 20. 



184 GREATER EUROPEAN GOVERNMENTS 

Political Use of Offices 

We are, unfortunately, only too familiar in this country 
with the doctrine that to the victors belong the spoils. In 
France we find the same thing, although it has not been 
acknowledged so openly, and has been disguised under the 
name of epuration, or the purification of the administration 
from the enemies of the Republic. The practice of turning 
political foes out of office and substituting one's friends 
seems to have begun during President MacMahon's contest 
with the Chamber, when the Reactionary party dismissed a 
large number of officials who had served under former cabi- 
nets. 1 After the Right had been overthrown in 1877, there 
arose a cry that the Republic ought not to be administered 
by men who did not sympathize with it, and would naturally 
throw their influence against it; but although the fear of 
danger to the form of government was no doubt genuine at 
first, the cry became before long an excuse for a hunt after 
office. 2 In speaking of this subject, however, it must be 
remembered that France is not divided into two great parties 
which succeed each other in power, and hence a wholesale 
change of public servants, such as has often taken place after 
a presidential election in the United States, does not occur. 
The process is continuous, but slower and less thorough. 
On the other hand, the evil in France is by no means limited 
to office-seeking, for owing to the immense power vested in 
the government, the favors which the deputies demand and 
exact as the price of their votes extend over a vast field. Nor 
do they show any false modesty about making their desires 

1 See Channes, pp. 18-19, 231-232. 

2 See the remarkable little book by Edmond Scherer, La Democratic et 
la France; Channes, Nos F antes {passim); Simon, Nos Hommes d'Etat, 
pp. 114-115, and ch. vi, p. ii; Dupriez, ii. 502-509; Lamy, La Republique 
en 188 j, pp. 6-8, 22; and see a highly colored account by Hurlbert, " The 
Outlook in France," Fortnightly Review, lv. 347. 



FRANCE: PARTIES 1 85 

known. They do not hesitate to invade the executive of- 
fices, and meddle directly in the conduct of affairs. 1 Even 
the prefect, who has the principal charge of local administra- 
tion, is not free from their interference. He is liable to lose 
his place if he offends the Republican deputies from his 
department, and is therefore obliged to pay court to them 
and follow their lead. In short, the prefect has become, to a 
great extent, the tool of the deputies; and his dependence is 
increased by the fact that nowadays he does not usually re- 
main in office long enough to acquire a thorough knowledge 
of the local wants, or to exercise a strong personal influence. 
I do not mean that he has become corrupt; far from it. The 
level of integrity among French officials appears to be ex- 
tremely high, and though wedded to routine, their efficiency 
is great; 2 but the discretion in their hands is enormous, and 
in using it they must take care not to displease his Majesty 
the Deputy. 3 

Deputies and their Committees 

Of course the deputies do not wield this immense in- 
fluence to forward their own private ends alone. They are 
representatives, and must use their position for the benefit 
of the persons they represent. But whom do they repre- 
sent ? The people at large ? No representative ever really 
does that. So far as he is actuated by purely conscientious 
motives he represents his own ideas of right, and for the rest 
he represents primarily the men who have elected him, and 
to whom he must look for help and votes in the next cam- 
paign. In some countries this means the party, and those 

1 Dupriez, ii. 435, 507-508; Channes, pp. 253-256; Lamy, pp. 21-26; 
Laffitte, Le Suffrage Universel, pp. 54-59. 

2 Simon, " Stability of the French Republic," The Forum, x. 383. 

3 Cf. Channes, Letter of Oct. 1, 1884; Laffitte, pp. 56-58; Dupriez, ii. 
471-472, 506-509. 



1 86 GREATER EUROPEAN GOVERNMENTS 

classes that hang on the skirts of the party and may be pre- 
vailed upon to fall into line. But in France there are no 
great organized parties, and hence we must consider how 
candidates are nominated there. The government, at the 
present day, does not put forward official candidates of its 
own, as was commonly done during the Second Empire; * 
and, indeed, it is not supposed to take an active part in elec- 
tions. This last principle is not strictly observed, for the 
administrative officials at times exert no little influence in 
important campaigns, and the government is said to have 
spent a good deal of money to defeat Boulanger in 1889. 
Still there is nothing resembling the control of elections 
under Napoleon III, and especially there is no interference 
with the selection of candidates, this matter being left to the 
spontaneous movement of the voters themselves. The usual 
method of proceeding is as follows: a number of men in 
active politics in a commune, or what we should call the 
wire-pullers, form themselves into a self-elected committee, 
the members usually belonging to liberal or semi-liberal 
professions, and very commonly holding advanced views 
which are apt to go with political activity in France. The 
committees or their representatives meet together to form 
an assembly, which prepares the programme, nominates the 
candidate, and proclaims him as the candidate of the party. 2 
These self-constituted committees, therefore, have the 
nomination entirely in their own hands; 3 and, except in the 

1 Simon, Dieu, Patrie, Liberie, p. 372. 

2 Simon, Nos Hommes d'Etat, pp. 17-25; Scherer, La Democratic et la 
France, -pp. 22-24; Reinach,Z,a Politique Opportuniste, pp. 186-188; Laffitte, 
op. cit., pp. 64-69. 

3 Since the system of scrutin de liste has been given up and the single 
electoral districts have been reestablished, the matter is said to have be- 
come somewhat more simplified. It is stated that the nominating commit- 
tees are now formed, at least in many cases, without any meeting of dele- 
gates from the communes; and that their function lies not in the selection 



FRANCE: PARTIES 1 87 

larger cities, a candidate owes his position largely to local 
influence and personal interests. 1 Sometimes he has won 
prominence by a clever speech at a local meeting. Some- 
times he has earned gratitude by services rendered in his 
profession, or otherwise. 2 

After the candidate is nominated, his first care is to issue 
his programme, and under the system of single electoral dis- 
tricts, each candidate, as has already been observed, has a 
separate programme, which expresses only his particular 
views. The active campaign is carried on by means of plac- 
ards posted on walls and fences, which make a great show, 
but win few votes; and what is far more effective, by means 
of newspapers and the stump. 3 The stump, curiously 
enough, is used very little except by the candidates them- 
selves, 4 who constantly speak at political rallies, of late 
years frequently holding joint debates. 5 

It is a common saying that if the committees want any- 
thing they exert a pressure on the deputy, who in his turn 

of a candidate, but rather in helping the candidate in whose behalf they 
have been organized, and acting as his sponsors. (See Alfred Naquet, 
" The French Electoral System," North American Review, civ. 466. But 
see Charles Benoist, " De reorganization du Suffrage Universel," Revue des 
Deux Mondes, July 1, 1895, pp. 15-20.) However this may be, the close 
relations between the deputy and a small self-constituted clique of local 
politicians, which is the essential point in the French electoral system, 
remains very much the same. 

1 Simon, Nos Hommes d'Etat, pp. 24-25. 

2 Chaudordy, La France en i88g, p. 96. 

3 Alfred Naquet, " The French Electoral System," North American 
Review, civ. 468-470. 

* Theodore Stanton, supplement to the article of Alfred Naquet, p. 473. 

6 Alfred Naquet, lb. The newspapers at election time are full of ac- 
counts of these meetings for joint debate, called Reunions publiques con- 
tradictoires. Direct bribery of voters, though not unknown, seems to be 
rare, but the complaint that elections have been getting a good deal more 
expensive of late years is general. Naquet, lb.; Reinach, pp. 189-190; 
Simon, Dieu, Patrie, Liberti, p. 373; Souviens toi du Deux Decembre, p. 91. 



1 88 GREATER EUROPEAN GOVERNMENTS 

brings a pressure to bear on the ministers; and hence it 
has been a common saying that the electoral committees 
rule the deputies, and the deputies rule the government. 1 

The Deputies and their Constituents 

It is asserted that, since the reintroduction of single elec- 
toral districts, the power of the committees has sensibly 
diminished, 2 and, whether this be true or not, it is certainly 
easy to exaggerate their influence, for the deputy must 
always consider other people besides the wire-pullers. He 
must try to strengthen his general popularity throughout 
his district. He is, indeed, expected to look after the politi- 
cal business of his constituents, and is a regular channel for 
the presentation of grievances and the distribution of favors; 
one of the complaints most commonly heard in France being 
that the deputies represent local and personal interests 
rather than national ones. But even this does not end his 
responsibilities. The traditions of centralization which 
make all France look to Paris for guidance, and the habit of 
paternal government that makes men turn to the state for 
aid, have caused many people to regard the deputy as a kind 
of universal business agent for his district at the capital, and 
burden him with all sorts of private matters in addition to 
his heavy public duties. Sometimes this is carried to an 
extent that is positively ludicrous. Some years ago a 
couple of deputies gave an account at a public dinner of the 

1 Channes, Nos Fautes, pp. 238-239; and see Scherer, La Democratic ct 
la France, p. 27; Simon, Dieu, Patrie, Liberie, p. 378. 

For this reason one frequently hears it said that the deputies do not see 
the real people, but only their own political dependents. Channes, p. 38; 
Simon, Souviens toi du Deux Decembre, pp. 165-166. 

2 Naquet, " The French Electoral System," North American Review, civ. 
466. But see on the other side the article. of Benoist in the Revue des Deux 
Mondes, July 1, 1895, pp. 17-19. 



FRANCE: PARTIES 1 89 

letters they had received from their districts. Some con- 
stituents wanted their representative to go shopping for 
them; others asked him to consult a physician in their be- 
half; and more than one begged him to procure a wet nurse, 
hearing that this could be done better in Paris than in the 
provinces. 1 Is it to be wondered that the French deputy 
should bend under the weight of his responsibilities ? 

If I seem to have drawn a somewhat dark picture of the 
position of the deputy, I do not want to be understood as 
implying that all deputies are alike; that many of them are 
not men of high character, who will not yield to the tempta- 
tion and pressure with which they are surrounded. My 
object is simply to describe a tendency; to point out a 
defect in the French political system, and to show clearly 
the characteristic evils which that defect cannot fail to de- 
velop. The famous scandals about the bribery of deputies 
in connection with the Panama Canal, with which the news- 
papers were rilled for three months, cast a dismal light over 
public life in France, and although at first the credulous no 
doubt exaggerated the extent of the corruption, still there 
was fire enough under the smoke to show what baleful 
influences haunt the corridors of the Palais Bourbon. 

Prospects of the Republic 

Before closing, let us consider for a moment the political 
prospects of the country. The generous enthusiasm that 
greeted the Republic at the outset has faded away, and even 
its most ardent advocates have found to their sorrow that it 
has not brought the promised millennium. Such a feeling of 
disappointment is not surprising. On the contrary, it might 
have been surely predicted, for in every form of government 
that has existed in France since the Revolution the period 

1 This is quoted by Scherer in La Democratic et la France, pp. 34-35. 



190 GREATER EUROPEAN GOVERNMENTS 

of enthusiasm has been followed by one of disenchantment, 
and to this latter stage the Republic has come in the natural 
course of events. Now this period may well be looked upon 
as crucial, because as yet no form of government in France 
has been able to live through it. After a political system has 
lasted about half a generation, the country has always be- 
come disgusted with it, torn it down, and set up another — a 
course that has made any steady progress in public life im- 
possible. The effect has, in fact, been very much like that 
which would be produced by a man who should constantly 
root out his crops before they came to maturity, and sow his 
field with new and different seed. 

The reason for such a state of things is not hard to find. 
Since the Revolution every form of government in France 
has been the expression or outward sign of a definite set of 
political opinions. So close, indeed, has the connection been 
between the two, that it has been impossible for men to con- 
ceive of one without the other, and therefore a fundamental 
change of opinion has always involved a change in the form 
of government. Any one who studies the history of the 
nation will see that there has never been a change of party 
without a revolution. There has often been a shifting of 
control from one group to another of a slightly different 
coloring, but the real party in opposition has never come to 
power without an overturn of the whole political system. 
Under the Restoration, for example, the ministers were 
sometimes Moderate and sometimes extremely Reactionary, 
but were never taken from the ranks of the liberal opposi- 
tion. Again, during the Monarchy of July the different 
groups of Liberals disputed fiercely for the mastery, but 
neither the Radicals nor the Reactionaries had the slightest 
chance of coming to power. If space permitted, this truth 
might be illustrated by taking up in succession each of the 



FRANCE: PARTIES 191 

governments that have flourished since the Revolution, but 
perhaps it is enough to refer to the only apparent exception 
that has occurred. While General MacMahon was Presi- 
dent of the Third Republic, power was certainly transferred 
from the Reactionaries to the Republicans, but the circum- 
stances of this case were very peculiar. The Republic had 
hardly got into working order, and the struggle of the Re- 
actionaries may be looked upon as a final effort to prevent it 
from becoming firmly established. The French themselves 
have always considered the occurrence, not as a normal 
change of party, but as the frustration of an attempt at a 
coup d'etat or counter-revolution. This case, therefore, from 
the fact that it has been generally regarded as exceptional, 
may fairly be treated as the kind of exception that tends to 
prove the rule. A revolution in France has corresponded in 
many ways to a change of party in other countries, but with 
this grave disadvantage, that the new administration, in- 
stead of reforming the political institutions, destroyed them 
altogether. Of course such a method put gradual improve- 
ment out of the question, and before the nation could perfect 
her government she had to learn that the remedy for defects 
is to be sought through the reform : not the overthrow, of the 
existing system. 

One would suppose that under the Republic no such diffi- 
culty could arise, because a republic means the rule of the 
majority, and the majority is sure to be sometimes on one 
side and sometimes on the other. But this is not the view of 
most French Republicans, and especially of the Radicals. 
These men, recognizing that, on account of a want of train- 
ing in self-government, the people can be cajoled, or fright- 
ened, or charmed, or tricked into the expression of the most 
contradictory opinions, refuse to admit that any vote not in 
harmony with their own ideas can be a fair test of the popu- 



192 GREATER EUROPEAN GOVERNMENTS 

lar will, and assume for themselves the exclusive privilege of 
declaring what the people really want. As M. Edmond 
Scherer has cleverly said: " Let us add that the God (uni- 
versal suffrage) has his priests, whose authority has never 
been quite clear, but who know his wishes, speak in his 
name, and, if resistance occurs, confound it by an appeal to 
the oracle whose secrets are confided to them alone." 1 The 
Radicals, therefore, cannot admit a possibility that the true 
majority can be against them, and nothing irritates them so 
much as to hear the other parties claim that the people are 
on their own side. It has been said that the Republic will 
not be safe until it has been governed by the Conservatives, 2 
and the remark has a special significance in this connection. 
It meant that, until the Conservative elements come to 
power, it would not be clear whether the Republic has 
enough strength and elasticity to stand a change of party 
without breaking down. It meant also that the right of the 
majority to rule, which is the ultimate basis of the consensus 
on which the Republic must rest, would not be surely estab- 
lished until each party has submitted peaceably to a popular 
verdict in favor of another. 

As the Republic grows older, the form of its institutions 
will no doubt be gradually modified, but, whatever changes 
take place, one thing is clear: the responsibility of the minis- 
ters to parliament must be retained. In a country like the 
United States, where power is split up by the federal system, 
where the authority in the hands of the executive is com- 
paratively small, and, above all, where the belief in popular 
government and the attachment to individual liberty and 
the principles of the common law are ingrained in the race, 

1 La Democratic et la France, p. 18. 

2 " La Republique et les Conservateurs," Revue des Deux Monies, March 
i, 1890, pp. 1 20-1 2 1. This means, of course, the conservative element 
among the people, and not merely the conservative Republicans. 



FRANCE: PARTIES 1 93 

there is no danger in entrusting the administration to a presi- 
dent who is independent of the legislature. But this would 
not be safe in France, because, owing to the centralization of 
the government and the immense power vested in the execu- 
tive, such a president would be almost a dictator during his 
term of office; and the temptation to prolong his authority, 
from public no less than from selfish motives, would be tre- 
mendous. And, in view of the tendency of the mercantile 
classes, and even of the peasants, to crave a strong ruler, it 
might not be difficult for him to do so, as Louis Napoleon 
proved long ago. He was able to overthrow a popular as- 
sembly because the French had long been accustomed to 
personal government, and because an assembly was incap- 
able of maintaining a stable majority; because, in short, the 
French knew how to work personal but not representative 
government: and the danger will continue until parliamen- 
tary institutions are perfected, and their traditions by long 
habit have become firmly rooted. The French president 
cannot, therefore, be independent, and the only feasible 
alternative is to surround him with ministers who are respon- 
sible to the Chamber of Deputies. But if the parliamentary 
system must be retained, it is important to remove the de- 
fects that it shows to-day, and especially is it necessary, on 
the one hand, to diminish the autocratic power of the ad- 
ministration, which offers a well-nigh irresistible temptation 
to both minister and deputy; and, on the other hand, to 
give the cabinet more stability, more dignity, and more 
authority; to free it from the yoke of the groups in the 
Chamber; to relieve it from the domination of irresponsible 
committees, and from the danger of defeat by haphazard 
majorities; to enable it to exert over its followers the disci- 
pline that is required for the formation of great, compact 
parties; to make it, in short, the real head of a majority in 
parliament and in the nation. 



194 GREATER EUROPEAN GOVERNMENTS 

That the Republic will endure no one will now doubt. 
The conduct of the nation during its heroic struggle in this 
war seems to prove it beyond all question. But that the 
methods of operating the republican government are defec- 
tive no one is more keenly aware than the French them- 
selves. Their criticism of the evils of politics have been 
incisive; and in fact the very disenchantment which the 
Republic has brought, the loss of faith in regeneration by 
any form of government, has not been without its value. If 
political idealism has faded into the light of common day 
this has had a bracing effect upon the national character, 
a sobering, invigorating influence which could be perceived 
even before this war revealed it to the world. The French 
people are more serious, more earnest, of a finer and deeper 
nature than their parliamentary life suggests. The imper- 
fections in the government have been largely due to the fact 
that the Republic was at the outset an experiment, sur- 
rounded, as they believed, by uncertainty and perils which 
with growing stability have vanished into the past. When 
peace returns such genius can hardly fail to remove them, 
relying upon the confidence the people have acquired in their 
own national force, in one another, and in the capacity for 
common action which their achievements in this war have 
made clear. 



CHAPTER VIII 

ITALY 

The perfection of its organization and the excellence of its 
laws preserved the life of Rome long after its vital force had 
become exhausted; and when the Teutonic tribes had once 
broken through the shell of the western empire, they over- 
ran it almost without resistance. Europe sank into a state 
of barbarism, from which she recovered to find her political 
condition completely changed. Slowly, during the Middle 
Ages, the nations were forming, until at last Europe became 
divided into separate and permanent states, each with an 
independent government of its own. In two countries, 
however — Italy and Germany — this process of develop- 
ment was delayed by the existence of the Holy Roman Em- 
pire, which claimed an authority far greater than it was 
able to wield, and, while too weak to consolidate its vast 
dominions into a single state, was strong enough to hinder 
them from acquiring distinct and national governments. 
The condition of Italy was further complicated by the 
presence of the Pope; for although the papacy was an 
immense civilizing force in mediaeval Europe, yet the con- 
stant quarrels of the Pope and the Emperor, and the exist- 
ence of the States of the Church, tended greatly to prevent 
the development of Italy as a nation. The country was 
broken into a multitude of jarring elements, and even 
Dante saw no hope of union and order save under the sway 
of a German emperor. The north of Italy was full of 
flourishing cities enriched by commerce and manufactures 
and resplendent with art, but constantly fighting with each 

105 



196 GREATER EUROPEAN GOVERNMENTS 

other, and, except in the case of Venice, a prey to internal 
feuds that brought them at last under the control of auto- 
cratic rulers. 1 The south, on the other hand, fell under the 
dominion of a series of foreign monarchs, who were often 
despotic, and, by making the government seem an enemy 
of the governed, destroyed in great measure the legal and 
social organization of the people. For thirteen centuries — 
from the reign of Theodoric the Ostrogoth to the time of 
Napoleon — the greater part of Italy was never united 
under a single head; and in both of these cases the country 
was ruled by foreigners. Yet, short-lived and unnatural as 
the Napoleonic kingdom of Italy was, it had no small 
effect in kindling that longing for freedom and union which 
was destined to be fulfilled after many disappointments. 

By the treaty of Vienna, in 18 15, Italy was again carved 
into a number of principalities, most of them under the 
direct influence of Austria. Most of them, but not all, for 
in the northwestern corner of the peninsula, between the 
mountains and the sea, lay Piedmont, ruled by a prince of 
the house of Savoy, with the title of King of Sardinia. Dur- 
ing the great popular upheaval of 1848, Charles Albert, a 
king of this line, granted to his people a charter called the 
Statuto, and in that year and the following he waged war 
with Austria for the liberation of Italy. He was badly 
beaten, but succeeded in attracting the attention of all 
Italians, who now began to look on the King of Sardinia as 
the possible savior of the country. After his second defeat, 
at Novara, on March 23, 1849, Charles Albert abdicated 
in favor of his son, Victor Emmanuel, who refused to repeal 
the Statuto in spite of the offers and the threats of Austria 
— an act that won for him the confidence of Italy and the 

1 Genoa was torn with factions, and was at times, though not perma- 
nently, subject to Milan or to France. 



ITALY 197 

title " II Re Galantuomo," the King Honest Man. The 
reliance, indeed, which Victor Emmanuel inspired was a 
great factor in the making of Italy; and to this is due in 
large part the readiness with which the Italian revolution- 
ists accepted the monarchy, although contrary to their re- 
publican sentiments. In fact, the chivalrous nature of the 
principal actors makes the struggle for Italian unity more 
dramatic than any other event in modern times. 1 The chief 
characters are heroic, and stand out with a vividness that 
impresses the imagination, and gives to the whole history 
the charm of a romance. Victor Emmanuel is the model 
constitutional king; Cavour, the ideal of a cool, far-sighted 
statesman; Garibaldi, the perfect chieftain in irregular 
war, dashing, but rash and hot-headed; Mazzini, the typical 
conspirator, ardent and fanatical; — all of them full of 
ardor and devotion. The enthusiasm which they inspired 
went far to soften the difficulties in their path, and to help 
the people to bear the sacrifices entailed by the national 
regeneration. Over against these men stands Pius IX, who 
began his career as a reformer, but, terrified by the march 
of the revolution, became at last the bigoted champion of 
reaction. The purity of his character and the subtle charm 
of his manner fitted him to play the part of the innocent 
victim in the great drama. 

The Union of Italy 

When Cavour first became prime minister of Victor 
Emmanuel in 1852, his plan was a confederation of the 
Italian States under the Pope as nominal head, but practi- 
cally under the lead of the King of Sardinia. Now, in order 
to make this plan a success, it was necessary to exclude the 

1 Professor Dicey speaks of this, and draws a comparison between Italian 
and Swiss politics, in a letter to The Nation, of Nov. 18, 1886. 



198 GREATER EUROPEAN GOVERNMENTS 

powerful and reactionary House of Hapsburg from all 
influence in the peninsula, and with this object he induced 
Napoleon III to declare war against Austria in 1859; but 
when the Emperor brought the war to a sudden end by a 
peace that required the cession of Lombardy alone, and left 
Venice still in the hands of the enemy, Cavour saw that so 
long as Austria retained a foothold in Italy, many of the 
principalities would remain subject to her control. He 
therefore changed his plan, and aimed at a complete 
union of Italy under the House of Savoy. 1 The whole 
country was ready to follow the lead of Victor Emmanuel, 
and, except for Venice and Rome, which were guarded by 
foreign troops, the march of events was rapid. The people 
of the northern states had already risen and expelled their 
rulers, and early in i860 they declared for a union with 
Sardinia. Later in the same year Garibaldi landed at 
Marsala with a thousand men, roused the country, and 
quickly overran Sicily and Naples, which decided by popu- 
lar vote to join the new kingdom — a step that was soon 
followed by Umbria and the marches. The rest of Italy 
was won more slowly. Venice was annexed in 1866, as a 
result of the war fought against Austria by Prussia and 
Italy; and Rome was not added until 1870, after the with- 
drawal of the French garrison and the fall of Napoleon III, 
who had sent it there to protect the Pope. 

The Statuto 

It is curious that Sardinia expanded into the kingdom 
of Italy without any alteration of its fundamental laws, for 
the Statuto, originally granted by Charles Albert in 1848, 
remains the constitution of the nation to-day. It has never 

1 Jacini, / Conservatori e V Evoluzione dei Partiti Politici in Italia, p. 55 
et seq. 



ITALY 199 

been formally amended, and contains, indeed, no provision 
for amendment. At first it was thought that any changes 
ought to be made by a constituent assembly, and in 1848 
a law was passed to call one, although on account of the 
disastrous results of the war it never met. By degrees, 
however, an opinion gained ground that the political institu- 
tions of Italy, like those of England, could be modified by 
the ordinary process of legislation. This has actually been 
done, to a greater or less extent, on several occasions; and 
now both jurists and statesmen are agreed that unlimited 
sovereign power resides in the king and Parliament. 1 The 
Statute contains a bill of rights; but, except for the pro- 
vision forbidding censorship of the press, and perhaps that 
protecting the right of holding meetings, 2 it was not de- 
signed to guard against oppression by the legislature, but 
only by the executive. The Statu to is, in fact, mainly oc- 
cupied with the organization of the powers of state, and has 
gradually become overlaid with customs, which are now so 
strong that many Italian jurists consider custom itself a 
source of public law. They claim, for example, that the 
habit of selecting ministers who can command a majority 
in Parliament has become binding as part of the law of the 
land. 3 

1 Brusa, Italien, in Marquardsen's Handbuch, pp. 12-16, 181-182; Ruiz, 
" The Amendments to the Italian Constitution," Ann. Amer. Acad, of Pol. 
Sci., Sept., 1895. It may be noted that the various contributions to Mar- 
quardsen's series are of very different value, and that Brusa's is one of the 
best. He remarks (p. 15) that, before changing any constitutional provi- 
sion, it has been customary to consult the people by means of a general 
election, and that it is the universal opinion that Parliament has not power 
to undo the work of the popular votes by which the various provinces were 
annexed; in other words, that Parliament cannot break up the kingdom. 
It has been suggested that the courts can consider the constitutionality of a 
law which involves a forced construction of the Statuto, but this view has 
not prevailed. (Brusa, pp. 182, note 3, 229-230.) 

2 Arts. 28, 32. 3 See Brusa, p. 19. 



200 GREATER EUROPEAN GOVERNMENTS 

Let us consider the powers of state in turn, beginning 
with the king and his ministers, then passing to the Parlia- 
ment, then to the local government and the judicial system, 
and finally to the position of the Catholic Church. 

The King 

At the head of the nation is the king, whose crown is 
declared hereditary, according to the principles of the Salic 
law; that is, it can be inherited only by and through males. 1 
It sounds like a paradox to say that the king is a constitu- 
tional sovereign, but that the constitution does not give a 
correct idea of his real functions, and yet this is true. By 
the Statute, for example, his sanction is necessary to the 
validity of laws passed by the Parliament, 2 but in point of 
fact he never refuses it. 3 Again, the constitution provides 
that treaties which impose a burden on the finances or 
change the territory shall require the assent of the cham- 
bers, 4 leaving the crown free to conclude others as it thinks 
best; but in practice all treaties, except military conven- 
tions and alliances, are submitted to Parliament for ap- 
proval. 6 The king is further given power to declare war, to 
appoint all officers, to make decrees and ordinances, to 
create senators, to dissolve the Chamber of Deputies, and 
so forth; 6 but the Statute also provides that no act of the 
government shall be valid unless countersigned by a min- 
ister; and in fact all the powers of the king are exercised 
in his name by the ministers, who are responsible to the 
popular chamber. 7 He is, indeed, seldom present at cabinet 

1 Statuto, Art. 2. 2 Statu to, Art. 7. 

3 Brusa, pp. 105, 153; cf. Dupriez, i. 281, 292-297. 

4 Statuto, Art. 5. 

5 Brusa, p. 106. 

6 Statuto, Arts. 5-9. 

7 Statuto, Art. 67; and see Brusa, p. 105. 



ITALY 20I 

meetings, and has little or no direct influence over current 
domestic politics, 1 although it is said that his personal 
opinion has a good deal of weight on the relations with 
foreign states. 2 When, however, a cabinet crisis occurs 
and the ministry resigns, the king has a great deal of lati- 
tude in the appointment of its successor; for the Chamber 
is not divided into two parties, one of which naturally comes 
into power when the other goes out, but, as in France, it is 
split up into a number of small groups, so that every min- 
istry is based upon a coalition. The king can, therefore, 
send for almost any one he pleases and allow him to attempt 
to form a cabinet. It often happens, moreover, that the 
man selected feels that he cannot get the support of a ma- 
jority in the existing Chamber, but, hoping for a favorable 
result from a new election, is willing to undertake to form a 
cabinet if allowed to dissolve Parliament. In such cases the 
king exercises his own discretion, and grants permission or 
not as he thinks best; for, contrary to the habit in France, 
dissolutions in Italy are by no means rare. Thus the Italian 
king, although strictly a constitutional monarch tied up in 
a parliamentary system, is not quite so powerless as the 
French president or the English king. 

The Ministers 

In the selection of his ministers the king is not limited 
by law to members of Parliament, but, if a man is appointed 
who is not a member of either house, he is obliged by cus- 
tom to become a candidate for the next vacant seat in the 
Chamber of Deputies, unless he is created a senator. 3 As 

1 Brusa, p. 108. Dupriez, i. 289, says that he presides only when pecul- 
iarly important matters are under discussion. 

2 Dupriez, i. 296. This is a common opinion. 

3 Brusa, p. 108; and the same thing is true of the parliamentary under- 
secretaries. Id., p. 196. 



202 GREATER EUROPEAN GOVERNMENTS 

in other parliamentary governments on the Continent, 
however, the ministers and their undersecretaries have a 
right to be present and speak in either Chamber, although 
they can vote only in the one of which they happen to be 
members. 1 The work of the Parliament is, indeed, chiefly 
directed by them; for, while individual members have a 
right to introduce bills, the power is used only for matters 
of small importance. 2 As a rule, each minister has charge 
of a department of the administration; but it is allowable, 
and was at one time not uncommon, to appoint additional 
ministers without portfolios, whose duties consisted solely 
in helping to shape the policy of the government, and 
defending it in the chambers. 3 

The Senate 

The Italian Parliament has two branches — the Senate 
and the Chamber of Deputies. The Senate is composed 
of the princes of the royal family, 4 and of members ap- 
pointed by the king for life from certain categories of per- 
sons defined by the Statute 5 These are: bishops; 6 sundry 

1 Statuto, Art. 66; Law of Feb. 12, 1888, Art. 2. 

2 Brusa, p. 172. Dupriez (i. 308) says that the ministers in Italy have 
not so complete a monopoly of initiative as in other countries, and that pri- 
vate members often propose measures with success. But in saying this he 
must not be understood to deny that the laws enacted as a result of private 
initiative are unimportant compared with the government measures, both 
as regards number and character. 

3 Brusa, p. 197. See, also, the lists of the different ministries published 
in the Manual of the Deputies. This manual, by the way, is a most valua- 
ble production, for it contains the text of many important laws and a large 
amount of interesting information. For the organization and functions of 
the various departments, see Brusa, p. 200 et seq. 

4 Statuto, Art. 34. 

5 Statuto, Art. 33. All the appointed members must be forty years old. 

6 Since the quarrel with the Pope in 1870 this class has not been avail- 
able. Brusa, p. 119. 



ITALY 203 

high officials, civil, military, and judicial; * deputies who 
have served three terms, or six years; 2 men who have been 
for seven years members of the Royal Academy of Science; 
men who pay over three thousand lire (about six hundred 
dollars) in taxes; 3 and men deserving exceptional honor 
for service to the state. Owing to the extreme severity of 
the Senate in recognizing such desert, there are at present 
only two members from this last class; for the Senate itself 
has the strange privilege of deciding whether a person 
selected by the king belongs properly to one of these classes, 
and is qualified to be a senator. 4 Except for money bills, 
which must be presented first to the Chamber of Deputies, 
the legislative powers of the two houses are the same, but 
the Senate has also judicial functions. It can sit as a court 
to try ministers impeached by the Chamber of Deputies; 
to try cases of high treason and attempts on the safety of 
the state; 5 and to try its own members — the Italians, 
curiously enough, having copied in their Senate the anti- 
quated privilege which entitles the English peers to be 
tried for crime only by members of their own body. 6 As a 
matter of fact, the Senate has very little real power, and 
is obliged to yield to the will of the lower house. 7 In 
1 878-1 880 it did, indeed, refuse to abolish the unpopular 
grist-tax for more than a year, but gave way before a newly 

1 Except in the case of the highest officials, persons of this class can be 
appointed only after a period of service which varies from three to seven 
years, according to the office they hold. In 19 10 there were ninety-nine 
senators from this class. 

2 Out of a total of about three hundred and eighty-three, there were in 
19 10 about one hundred and forty-seven senators from this class. 

3 There were seventy-one senators from this class. 

4 Brusa, p. 119; and see the Statuto, Art. 60. 

5 Statuto, Art. 36. 6 Statuto, Art. 37. 

7 The changes made by the Senate in bills have usually a legal rather 
than a political importance. Dupriez, p. 313. 



204 GREATER EUROPEAN GOVERNMENTS 

elected Chamber of Deputies. 1 It would probably not 
venture even so far to-day, for the number of senators is 
unlimited, and on several occasions a large batch of mem- 
bers has been created in order to change the party coloring 
of the body — in 1890 as many as seventy-five having been 
appointed for this purpose at one time. 2 As in other coun- 
tries where the parliamentary system exists, the cabinet is 
not responsible to the upper house ; and it is only occasion- 
ally, and as it were by accident, that a minister has resigned 
on account of an adverse vote in the Senate. 3 

The Chamber of Deputies 

The Chamber of Deputies consists of five hundred and 
eight members, elected until 191 2 on a limited franchise. 
By the earlier law, the suffrage was so restricted that less 
than two and a half per cent of the population were entitled 
to vote; but this was felt to be too small a proportion, and 
in 1882 it was increased by an act whose provisions were 
in force for thirty years. 4 By this statute a voter must be 
able to read and write, and must have passed an examina- 
tion on the subjects comprised in the course of compulsory 
education, 5 except that the examination was not required 
in the case of officials, professional men, graduates of col- 
leges, and others who could, of course, pass it; nor in the 
case of men who had received a medal for military or civil 

1 Brusa, pp. 155-156. See Petruccelli della Gattina, Storia d' Italia, 
1860-1880, pp. 420-421, 558-559- 

2 In 1886 forty-one were appointed together, and in 1892 forty-two. See 
the list of senators with their dates, in the Manual of the Deputies for 1892, 
p. 806 et seq., and p. 876. 

3 Brusa, p. 158, note 3. 

4 Brusa, pp. 122-127. This law, with its amendments, recodified in 1895, 
may be found in full in the Manual of the Deputies for that year. 

6 Education was compulsory in Italy only between the ages of six and 
nine. Act of July 15, 1877, Art. 2. 



ITALY 205 

service, or who paid a direct tax of nineteen and four- 
fifths lire (about four dollars), or who paid rents of certain 
amounts. TJtte change more than tripled the number of 
voters at once; 1 and, although these still included only a 
small part of the citizens, it is to be observed that with 
the spread of elementary education their number was ex- 
pected to increase until the suffrage became substantially 
universal. 2 

At first the members were chosen each in a separate dis- 
trict, but after the times of enthusiasm for Italian unity were 
over, and the generous impulse that had stirred the country 
began to give way before the selfish motives of everyday 
life, it was found that the deputies failed to take broad 
views of national questions, and were largely absorbed by 
personal and local interests. It was found, in short, that 
they represented the nation too little and their particular 
districts too much; 3 and it was hoped that by increasing 
the size of the districts they would be freed from the tyranny 
of local influence, and enabled to form compact parties on 
national issues. 4 With this object the Act of 1882 dis- 
tributed the five hundred and eight seats among one hun- 
dred and thirty-five districts, which elected from two to five 

1 It raised the number from 627,838 to 2,049,461. Brusa, p. 127. When 
the law went into effect, the voters were not very unequally divided into 
those who passed the examination, those who paid the taxes, and the other 
excepted classes. Id., p. 126, notes 1-2. 

2 In order to restrict the arbitrary influence of the government over 
elections, and to prevent the abuses which had been common before, a pro- 
cedure for preparing the lists of voters and insuring the secrecy of the ballot 
was established by the same law (see Brusa, pp. 127-128, 130-132); and in 
this connection it may be noticed that soldiers and sailors in active service 
(including subalterns and police officials) are not allowed to vote. Law of 
March 28, 1895, Art. 14. 

3 Brusa, p. 16. 

4 Minghetti, / Partiti Politici, p. 18; Petruccelli della Gattina, p. 504. 



2o6 GREATER EUROPEAN GOVERNMENTS 

deputies apiece; x and, in order to give some representation 
to minorities, it was provided that in those districts which 
elected five deputies no one should vote for more than four 
candidates. 2 The new system, called the scrutinio di lista, 
did not produce the results that were expected from it. On 
the contrary, in Italy as in France, where the same remedy 
was applied to the same evil, the organization and power of 
the local wirepullers grew with the increase in the num- 
ber of deputies elected in a district, while the influence of 
the latter over the ministers and the provincial officers was 
greater than ever before. 3 An Act of May 5 , 1 891 , abolished, 
therefore, the scrutinio di lista and reestablished single 
electoral districts. 

Finally, in spite of the large number of illiterates, an act 
was passed on June 30, 19 12, which established very nearly 
universal manhood suffrage. It extended the right to vote 
to all men who can read and write, and to those who cannot 
but who have reached the age of thirty years and have 
performed their military service. The system of single 
electoral districts was retained. The act increased the elec- 
torate from three millions to about eight millions; and the 
first elections held under it in the course of the following 
year showed a distinct tendency toward the more radical 
groups. 

In accordance with the general practice in Europe, the 
deputies are not required to be residents of their districts, 
the only important limitations on the choice of candidates 
being the requirement of the age of thirty years, and the 

1 Three districts elected two deputies, sixty-one elected three, thirty-six 
elected four, and thirty-five elected five. Brusa, p. 129. See Arts. 44 and 
45 of the Act of 1882, and the table of districts annexed thereto. 

2 Act of 1882, Art. 65. 

3 Brusa, lb.; and see Turiello, Governo e Governati in Italia, 2d ed.; 
Fatti, p. 326; Proposte, p. 171. 



ITALY 207 

provision excluding priests who have active duties, mayors 
and provincial counsellors in their own districts, and all 
officials paid from the treasury of the state with the excep- 
tion of ministers, undersecretaries, and a few others. 1 Under 
the earlier laws the deputies received no pay for attendance, 
but were given free passes over the railroads, 2 and it was 
no doubt partly for this reason that the small attendance in 
the Chamber was long a crying evil. To remedy this the 
Act of 1 91 2 provided for the payment of the members. 

The Chamber is elected for five years, but so far its life 
has always been cut short by a dissolution, and in fact the 
average length of term has been less than three years. 3 The 
budget and the contingent of recruits are adjusted by annual 
laws, and there would naturally be a new session every 
year; but in order not to interrupt the work of Parliament, 
and especially the consideration of the budget, which is 
apt to be behindhand, a curious habit grew up of prolonging 
the sessions, so that three parliaments have had only a 
single session apiece, one lasting two and a half and another 
three and a half years, all of them unbroken save by 
occasional recesses. 4 

The Chamber of Deputies elects its own President and 
other officers, and the vote for President used to be an 

1 Brusa, pp. 132-134; and see Acts of Dec, i860 (Arts. 97, 98), July 3, 
1875, May 13, 1877, July 5, 1882, March 28, 1895 (Arts. 81-89). There is 
a curious provision that only forty officials of all kinds (except ministers 
and undersecretaries), and among them not more than ten judges and ten 
professors, can be deputies at the same time, and if more are elected they 
are reduced to that number by lot. Law of March 28, 1895, Art. 88. On 
account of some scandals that occurred at one time it is further provided 
that no officers of companies subventioned by the state, and no government 
contractors, can sit in the Chamber. Brusa, p. 134; law of March 28, 
1895, Arts. 84-85. 

2 Brusa, pp. 159-160. 3 Id., p. 139. 

4 Brusa, p. 139; and see the list of the sessions of the various Parliaments 
in the Manual of the Deputies. 



208 GREATER EUROPEAN GOVERNMENTS 

occasion for a trial of party strength, as in most other legis- 
lative bodies. Of late years, however, the English habit 
has prevailed of reelecting the same man without regard to 
party affiliations; x and this is the more striking because the 
President appoints the committees on rules and contested 
elections 2 which have, of course, no little importance. The 
idea that the presiding officer ought to be strictly impartial 
is not the only valuable suggestion the Italians have derived 
from England, for they have inherited Cavour's admiration 
for British parliamentary procedure, and in general they 
attempt to follow it. Unfortunately they have not done 
so in all cases, for the system of committees and of interpel- 
lations or questions has been copied mainly from the French 
and not the English practice. 

The Administrative System 

Such, briefly stated, are the position of the king and the 
composition of the Parliament; but although the king and 
his ministers on the one hand, and the Parliament on the 
other, are the great political forces whose interaction de- 
termines the character of the government, still it is impossi- 
ble to appreciate the relations between the two without 
some knowledge of the method of administration, the prin- 
ciples of local government, and the control exercised by the 
courts of law, because these matters have a direct bearing 
on the functions of the cabinet and hence on the nature of 
the influence exerted upon it by the Parliament. 

The administration both of national and local affairs, 
and to some extent the judicial system of Italy, are modeled 

1 Brusa, pp. 140 and 156, note 2. Biancheri was President of the Chamber 
continuously from 1884 to 1892. Manual of the Deputies for 1892 (pp. 800- 
802). In that year he was dropped for party reasons, and in fact the practice 
of looking on the President as the representatvie of a party has unfortunately 
revived. 

2 Rules of the Chamber of Deputies, Art. 12. 



ITALY 209 

on those of France, and they present the defects without 
all the advantages of the original. This is particularly true 
of the administrative system, where Italy has copied the 
centralization, but has been unable to acquire the tradi- 
tions which give real solidity to the body of officials. At 
first sight it seems strange that Cavour and his successors, 
with their admiration for English institutions, should have 
turned to the French bureaucracy as a pattern; but there 
were several reasons for their course. In the first place the 
Napoleonic rule had already made the Italians familiar 
with the French form of administration. A far stronger 
motive came from the fact that after Cavour gave up the 
idea of a confederation, and strove to create a united king- 
dom of Italy, it became important, in view of the possible 
interference of foreign powers, to consolidate the different 
provinces as completely and rapidly as possible. The 
Italian statesmen tried, therefore, to make the people 
homogeneous; to remove as far as possible all local differ- 
ences; and to destroy all possibility of local opposition. 1 
The country, moreover, was very backward, and a great 
work of regeneration had to be undertaken, especially in 
the south, where society was badly disintegrated and brig- 
andage was rife. To accomplish this a highly centralized 
and autocratic system, in which the government could make 
itself quickly and decisively felt, was thought essential; 2 
and it was believed, not without reason, that until the union 
was accomplished, and order had been established in Naples 
and Sicily, it was impossible to introduce general local self- 
government or universal liberty. The old territorial divi- 
sions were therefore swept away, and replaced by artificial 
districts devoid, of course, of real local fife. A centralized 

1 See Brusa, pp. 23, 337; Jacini, / Conservatori, p. 55 et seq., Due Anni 
di Politica Italiana, pp. 93-94. 

2 See Brusa, pp. 253-254. 



2IO GREATER EUROPEAN GOVERNMENTS 

form of administration was set up, and the government was 
given a highly arbitrary power to interfere with the free- 
dom of the individual. Such a system might have worked 
very well in the hands of a wise dictator, but, as some of 
the Italian writers have themselves remarked, it was so 
entirely inconsistent with the parliamentary form of govern- 
ment that one of them was sure to spoil the other, and ex- 
perience has shown that both of them have suffered from 
the combination. 1 

Contrast between Theory and Practice 

There is a marked contradiction in Italy between the 
theory and practice of government; for there is a strong 
ambition to be abreast of the times and a general belief in 
the principle of personal liberty; but the actual condition 
of the nation has made it impossible to live up to these 
standards. A striking example of the contrast between 
aspirations and results is furnished by the state of the 
criminal law, for capital punishment has been abolished, 
in spite of the fact that homicide is more common than in 
any other civilized country in Europe, 2 and yet criminal 
procedure is in such a condition that thousands of people 
have been arrested on suspicion, kept in prison sometimes 
for years, and finally released because there was not suffi- 
cient ground for trial. 3 Thus by her code Italy appears to be 

1 Cf. Jacini, / Conservatory pp. 67-68; Minghetti, / Parti Politici, p. 100; 
Pareto, " L'ltalie Economique," Revue des Deux Mondes, Oct. 15, 1891; 
and see Bertolini, " I Pieni Poteri per le Riforme Organiche," Nuova Anto- 
logia, June 1, 1894. 2 Turiello, Fatti, pp. 330-332. 

3 See Speyer, in Unsere Zeit, 1879, i. 576. Petruccelli della Gattina says 
(Storia d'ltalia, p. 258) that in 1876, 93,444 persons were arrested on sus- 
picion and let off because there was no ground for trial. This, it is true, 
was eleven years before the code was finally enacted; nevertheless it illus- 
trates the contrast between ideals and practice in criminal matters, and in 
fact in that very year the abolition of the death penalty was voted by the 
Chamber of Deputies, but rejected by the Senate. 



ITALY 211 

in advance of most other nations, but in her criminal prac- 
tice she is really far behind them. The truth is that the 
successive governments, in view of the unsettled state of 
the country, have been afraid to place restraints on their 
own power, and weaken an authority thought necessary for 
the preservation of order. Of course the result has been a 
good deal of arbitrary officialism and disregard of the rights 
of the citizen, 1 but while this is a misfortune for the north 
of Italy, extraordinary and autocratic power has at times 
been indispensable in Sicily and the south. 2 The impossi- 
bility, indeed, of giving effect to the theories of liberty that 
are constantly proclaimed from every quarter was forcibly 
illustrated by the only serious attempt that has been made 
to do so. When Cairoli and Zanardelli became ministers 
in 1878 they tried to carry out their principles thoroughly. 
They permitted the constitutional right of public meeting 
to be freely exercised, and gave up the despotic practice of 
preventive arrest, trusting to the courts to punish offenders 
against the law; but brigandage increased so fast, and other 
disturbances became so alarming, that the cabinet was 
driven from office, and its policy was abandoned. In later 
years Zanardelli has again held office, and succeeded in im- 
proving the administrative and judicial system to some ex- 
tent, but the progress of the reform has been extremely 
slow, and the arbitrary power of the government, although 
reduced, still conforms even in quiet times far more nearly 
to French than to Anglo-Saxon notions. 

The Ordinance Power 

There are two matters in connection with the adminis- 
tration that require special notice. One of them is the power 
of the executive officials to make ordinances. This is even 

1 Cf. Brusa, p. 183. 2 Cf. Speyer, in Unsere Zeit, 1879, i- 5& 1 - 



212 GREATER EUROPEAN GOVERNMENTS 

more extensively used than in France, and there are com- 
plaints that it is sometimes carried so far as to render the 
provisions of a statute nugatory, 1 although the constitu- 
tion expressly declares that " the king makes the decrees 
and regulations necessary for the execution of the laws, 
without suspending their observance or dispensing with 
them." 2 The interpretation put upon this provision is in 
fact so broad that the government is practically allowed to 
suspend the law subject to responsibility to Parliament, and 
even to make temporary laws which are to be submitted to 
Parliament later — a power that is used when a tariff bill 
is introduced, to prevent large importations before the tariff 
goes into effect. 3 The Parliament has, moreover, a habit 
of delegating legislative power to the ministers in the most 
astonishing way. In the case of the Italian criminal code, 
for example, the final text was never submitted to the cham- 
bers at all, but after the subject had been sufficiently de- 
bated, the government was authorized to make a complete 
draft of the code, and then to enact it by royal decree, har- 
monizing it with itself and with other statutes, and taking 
into account the views expressed by the chambers. The 
same was true of the electoral law of 1882, of the general 
laws on local government and on the Council of State, and 
of many other enactments. 4 It may be added that although 

1 BrUsa, pp. 170-172. 

2 Statuto, Art. 6. The courts have power to refuse to apply an ordinance 
which exceeds the authority of the government, but, in practice, this is not 
an effective restraint. Brusa, pp. 1 71-172, 175, 187. 

3 Brusa, pp. 186-187. In 1891 the customs duties on several articles 
were increased by royal decree, which was subsequently ratified by Parlia- 
ment. 

5 Brusa, pp. 175-176; Bertolini, " I Pieni Poteri," Nuova Antologia, 
June 1, 1894. Several laws of this kind may be found in the Manuals of 
the Deputies. They are issued in the form not of statutes, but of ordinances, 
and begin by reciting the legislative authority under which they are made. 



ITALY 213 

the Statute does not expressly provide for it, the ministers, 
prefects, syndics, and other officials are in the habit of mak- 
ing decrees on subjects of minor importance. 1 The prefer- 
ence indeed for administrative regulations, which the 
government can change at any time, over rigid statutes is 
deeply implanted in the Latin races, and seems to be 
especially marked in Italy. 2 

The Civil Service 

The other matter referred to as requiring special notice 
is the civil service. The host of officials, who are, unfortu- 
nately, too numerous and too poorly paid, 3 can be appointed 
or dismissed very much at the pleasure of the government, 
for although there are royal decrees regulating appoint- 
ments and removals in many cases, they do not appear to 
furnish a satisfactory guarantee. 4 Here, then, is a great 
mass of spoils, in the distribution of which the politicians 
take an active part. 5 Decrees, providing for competitive 
examinations for admission to the service, are indeed com- 
mon; and in 1890 a statute, 6 affecting the officers in the 
department of public safety, was passed with provisions for 

It is a curious fact that Italian statutes vary a great deal, sometimes con- 
taining only general principles, and leaving to the government the task 
of completing them by supplementary regulations, and sometimes going into 
minute details (Brusa, p. 171). Dupriez, who looks at the matter from a 
French standpoint, says (i. 336) that in the struggle between the government 
and the Parliament over the limits of the ordinance power, the government 
has tried to extend its authority beyond measure, and the Parliament to 
dispute it even in the matter of organizing the administrative service. 

1 Brusa, pp. 188-190. 

2 Minghetti, pp. 293-294. 

3 Brusa, p. 260. 

4 Dupriez, i. 337-34°; Brusa, pp. 252-255. For the scope of these de- 
crees, see p. 261 et seg. 

6 Brusa, pp. 152-153; and see Dupriez, i. 340-342. 
6 Law of Dec. 21, 1890. 



214 GREATER EUROPEAN GOVERNMENTS 

such examinations, and for preventing removal without the 
consent of a standing commission. But civil service laws, 
like all others, depend for much of their effectiveness on 
the persons who execute them. 1 

Local Government 

Let us look for a moment at the local government. The 
Italian statesmen had at first a general belief in decentrali- 
zation, 2 but the force of circumstances and a repugnance to 
the idea of federation were so strong that the old territorial 
divisions, which could alone have furnished a solid basis for 
a decentralized system, were abandoned, and the whole 
country was cut up into a series of brand-new districts. 
These are the provinces, the circondari, the mandamenti, 
and the communes, 3 of which the first and the last are the 

1 There are two bodies that exercise a considerable control over the gov- 
ernment. One of these is the Council of State, which has, however, only 
an advisory power, except in matters of administrative justice, and in the 
case of provincial and communal officials whom it protects from arbitrary 
removal. On this subject see Brusa, p. 212 et seg. The laws of June 2, 1889, 
which regulate this body, may be found in the Manual of the Deputies for 
1892, p. 357. The other is the Courts of Accounts (Corte dei Conti), whose 
members can be removed only with the consent of a commission composed 
of the Presidents and Vice-Presidents of both, Chambers. It has a limited 
supervision over the collection of the revenue, and passes finally on pensions 
and on the accounts of officials, provinces, and communes. It also makes a 
yearly report to Parliament on the accounts of each ministry; but its most 
extraordinary function consists in the fact that all decrees and orders which 
involve the payment of more than 2,000 lire must be submitted to it for 
registration, and if it thinks them contrary to the laws or regulations it can 
refuse to register them. It is, indeed, obliged to register them if the Council 
of Ministers insists upon it, but in that case they must be transmitted to the 
President of the Chambers together with the opinion of the Corte dei Conti. 
Law of Aug. 14, 1862, Arts. 14, 18, 19; and see Brusa, pp. 219-224. 

2 In 1868, the Chamber actually voted an order of the day in favor of 
decentralization. Petruccelli della Gattina, pp. 192-195. 

3 In the provinces of Mantua and Venice the division is somewhat dif- 
ferent, but is being brought into accord with the general plan. Brusa, p. 339. 



ITALY 215 

only ones of great importance. Until the Act of 1888, the 
powers conferred on the local bodies were extremely small, 
and even now they are far from extensive, for the whole 
system is copied from that of France, and, with some varia- 
tions in detail, the organization and powers of the French 
local officers and councils have been followed very closely. 1 
A general description of the local government would there- 
fore consist very largely in a repetition of what has been 
already said in the first chapter on France; and hence it is 
only necessary to touch on a few salient points, begging the 
reader to remember how great a power and how large a 
share of political patronage this system places in the hands 
of the central authorities. 2 At the head of each province, 
which corresponds to the French department, is a prefect 
appointed by the king, and directly subject to the Minister 
of the Interior. Like his French prototype, he is regarded 
as a political officer, and uses his influence more or less 
openly at elections. 3 The chief executive magistrate of the 
commune is the syndic; who is chosen, like the mayor in 
France, by the communal council from its own members. 
In the smaller communes, he was, until 1896, selected by 
the king from among the members of the council. As in 
France, both the provinces and the communes possess 

1 For a description of the local government, see Brusa, p. 337 et seq. 
The full text of the law on the subject was fixed by royal ordinance on 
Feb. 10, 1889, in accordance with the Act of Dec. 30, 1888. It was followed 
by an elaborate ordinance regulating its execution, and on July 7, 1889, 
and July n, 1894, by acts amending the law. Manual of Deps., 1895, 
pp. 301-394- 

2 In practice the administration appears to be, if anything, even more 
centralized than in France, owing to the habit on the part of the officials of 
referring everything to the central government. Jacini, i" Conservatori, 
p. 130; Minghetti, / Partiti Politici, pp. 240-241. 

3 Brusa, pp. 225, 277. On the eve of the elections in 1892, forty-six out 
of the sixty-nine prefects were dismissed or transferred to other provinces, 
in order to help the government to carry the country. 



2l6 GREATER EUROPEAN GOVERNMENTS 

elected councils. In Italy they are chosen for six years, 
one half being renewed every three years; but the suffrage 
for these bodies was exceedingly restricted, until by the 
Act of 1888 it was extended so as to be somewhat wider, 
especially as applied to the peasants, than the suffrage for 
the election of deputies. 1 The resources of the local bodies 
are not adequate for the fulfillment of their duties, and this, 
combined with a love of municipal display, has been the 
cause of heavy debts, especially in the case of the larger 
cities, many of which have long been on the verge of 
bankruptcy. 2 

The Judicial System 

There is one branch of the Italian government which has 
not been centralized, and that is the judicial system. The 
lower courts are, indeed, new creations, organized on a 
symmetrical plan very much resembling the French; but, 
in order apparently not to offend the bench and bar of the 
old principalities, the highest courts have been suffered to 
remain in the more important capitals, so that there are 
now five independent Courts of Cassation, those of Turin, 
Florence, Naples, Palermo, and Rome, each of which has 
final and supreme authority, within its own district, on all 
questions of ordinary civil law. 3 The Court of Cassation at 

1 The other communal and provincial bodies are the municipal giunta, 
which is elected by the communal council, and has executive powers; the 
provincial deputation, which occupies a similar position in the province, 
and is elected by the provincial council; the prefectorial council, appointed 
by the central government to assist the prefect; and the provincial adminis- 
trative giunta, partly appointed and partly elected, which has a certain 
share in administrative justice, and whose approval is necessary for the 
validity of some of the most important acts of the local councils. For a list 
of these acts see the Local Government Law of Feb. 10, 1889, Arts. 142, 
166-171, 173, and 223. 

2 See Brusa, pp. 365-367; Turiello, Proposte, pp. 56, 63-65. 

3 A Court of Cassation is a court of last resort, which considers only 
errors in law in the decisions of inferior tribunals. 



ITALY 217 

Rome has, it is true, been given little by little exclusive 
jurisdiction over certain special matters; 1 but the ordinary- 
civil jurisdiction is still divided among the five Courts of 
Cassation, which bear the same relation to each other as 
the highest state courts in America. 2 There is no appeal 
from one to another, and no one of them feels bound to ac- 
cept the decisions of the others, or to follow them as prece- 
dents. One cannot help thinking that this is an unfortu- 
nate condition, because there is nothing that tends more 
completely to consolidate a people, without crushing out 
local life, than a uniform administration of justice. Italy 
has, indeed, a series of codes enacted at various times from 
1865 to 1889, and covering civil law, civil procedure, com- 
mercial law, criminal law, and criminal procedure; but a 
code alone will not produce uniformity, because there is still 
room for differences of interpretation, and in fact the Italian 
Courts of Cassation often disagree, and there is no tribunal 
empowered to harmonize their decisions. 3 

The Courts and the Officials 

As we have already seen in the case of France, the decision 
of civil and criminal questions forms only a part of the ad- 
ministration of justice in continental Europe, on account 
of the distinction drawn between public and private law. 4 

1 These are, conflicts of competence between different courts, or between 
the courts and the administration; the transfer of suits from one court to 
another; disciplinary matters; and writs of error in criminal cases, in 
complaints for violation of election laws, in civil suits against judges, and 
in questions of taxes and of church property. 

2 For the organization and jurisdiction of the courts, see Brusa, pp. 231- 
238. 

3 Cf. Speyer, in Unsere Zeit, 1879, i. 576. 

4 Belgium presents an exception, for there the officials can be sued, and 
the acts of the government can be reviewed by the ordinary courts, as in an 
Anglo-Saxon country. Cf. Kerchove de Denterghem, De la Responsabilite 
des Ministres dans le Droit Public Beige. 



21 8 GREATER EUROPEAN GOVERNMENTS 

In order, therefore, to form a correct estimate of the position 
of the courts, we must consider their relation to the govern- 
ment, and their power to determine the legality of the acts 
of public officers. In Italy the prefects, subpref ects, syndics, 
and their subordinates still enjoy the so-called administra- 
tive protection, that is, they cannot be sued or prosecuted 
for their official conduct without the royal consent. 1 This 
privilege is generally unpopular, and will no doubt be 
abolished when the proposed bill on the tenure of office is 
passed. Meanwhile the benefit of it is claimed more and 
more frequently, although the permission to proceed ap- 
pears to be usually granted. 2 But even when this protection 
has been taken away, the courts will not have as much 
authority as in England or America. The reader will re- 
member that the officers of the French government formerly 
possessed a similar privilege, and were deprived of it after 
the fall of the Second Empire. He will remember also that 
the change made very little practical difference, because it 
was held that the ordinary courts had no power to pass on 
the legality of official acts, such questions being reserved 
exclusively for the administrative courts. The result of 
abolishing the privilege will not be precisely the same on the 
other side of the Alps, because the problem has been worked 
out on somewhat different lines, a curious attempt having 
been made to establish a compromise between the English 
and the French systems. 

Administrative Law 

The subject of administrative law is, indeed, very con- 
fused in Italy, and some years ago it was in a thoroughly 

1 Law of Feb. io, 1889, Arts. 8, 139. 

2 Brusa, p. 282; Turiello, Fatti, pp. 210-21 1. The permission to prose- 
cute is not necessary in the case of offenses against the election laws. Law 
of Feb. 10, 1889, Art. 100 et seq.; Brusa, pp. 73, 130, note 1. 



ITALY 219 

unsatisfactory condition. When the union was formed, 
several of the component states possessed administrative 
courts of their own; but in order to produce uniformity, 
and also with a view of furnishing the rights of the citizen 
with a better guarantee, an act of March 20, 1865, abolished 
all these tribunals, and provided that the ordinary courts 
should have exclusive jurisdiction of all criminal prose- 
cutions and of all civil cases in which a civil or political 
right was involved, the Council of State being empowered 
to decide whether such a right was involved or not. 1 It was 
not clearly foreseen that this last provision would place in 
the hands of the government an arbitrary power; 2 but such 
proved to be the case, for the Council of State, composed 
as it was at that time of members who could be removed 
at pleasure, 3 showed little inclination in disputed cases to 
recognize that any private rights were involved ; and, there 
being no administrative courts at all, the government had 
an absolutely free hand as soon as the jurisdiction of the 
ordinary courts was ousted. 4 The attempt to place the 
rights of the citizen more fully under the protection of 
the ordinary courts than in France had resulted in freeing 
the officials more completely from all control; for, except 
when strong political motives come into play, arbitrary con- 
duct on the part of the French officials is restrained by the 
administrative courts. This state of the law in Italy gave 
rise to bitter complaints, but it lasted until 1877, when the 
decision of conflicts, as they are called, or disputes about 

1 Legge sul Contenzioso Administrative (March 20, 1865). See, especially, 
Arts, i, 2, 3, 13. 

2 Perhaps it would be more correct to say that it was not foreseen how 
this power would be used for party purposes. Minghetti, / Partiti Politici, 
p. 270 et seq. 

3 See Legge sul Consiglio di Stato of March 20, 1865, Art. 4. 

4 See Brusa, pp. 212-213, 247; Minghetti, / Partiti Politici, p. 147 et seq. 



220 GREATER EUROPEAN GOVERNMENTS 

jurisdiction between the administration and the courts, was 
transferred to the Court of Cassation at Rome. 1 Still there 
was no system of administrative justice; and hence, how- 
ever illegal, and however much in excess of the authority of 
the official who made it, a decree, ordinance, or other act 
might be, no redress could be obtained from any tribunal 
unless it could be shown that an actual legal right was 
violated. 2 

Administrative Courts 

This omission in the judicial system was finally supplied 
by the statutes of 1889 and i8po, which reorganized the 
Council of State, created a special section of it to act as an 
administrative court, and conferred an inferior administra- 
tive jurisdiction on the provincial giunta. 3 In order to give 
the council a considerable degree of independence, it was 
provided at the same time that the members, whose num- 
ber is limited, should be retired only on account of sickness 
and removed only for breach of duty, and in each case only 
after hearing the opinion of the Council of State itself. 4 
The section which acts as an administrative court enjoys a 
still greater degree of protection; for it is composed of a 
president and eight other members selected from among the 
councillors of state by the king, and of these eight not less 
than two nor more than four can be changed in any one 
year, 5 so that, although the body has not the permanence of 
a court of law, it is by no means a tool of the government. 
Except in purely political matters, and in certain questions 
relating to customs duties and conscription, it has power to 

1 Law of March 31, 1877 (Manual of Deps. 1892, p. 374). 

2 Cf. Brusa, pp. 247-250. 

3 These acts, June 2, 1889, and May 1, 1890, are printed in the Manual 
for 1892, at pp. 357 and 377. 

4 Act of June 2, 1889, Art. 4. 

5 Act of June 2, 1889, Art. 8. 



ITALY 221 

decide whether the acts of the central or local officers are 
authorized by law, unless some special tribunal or the ordi- 
nary courts have jurisdiction. 1 In brief, therefore, the 
legality of official acts is determined in civil cases by the 
ordinary courts when a question of private right, and by 
the administrative courts when a question only of interest, 
is involved. The function of the ordinary courts in these 
cases is, however, strictly limited to the protection of the 
individual, and does not involve an authoritative declara- 
tion of the law, for it is expressly provided that the judg- 
ment must be confined to the case at bar, and in that alone 
is the administration bound by the decision. 2 This principle 
is deeply rooted in the jurisprudence of the nation, for the 
Statuto itself declares that the interpretation of the law in 
such a way as to be universally binding belongs exclusively 
to the legislative power. 6 The Italian, indeed, has a dread 
of that wholesome form of legislation, judge-made law — 
a prejudice which certainly seems very strange when we 
consider what a large part of the law of the civilized world, 
and especially of the law of the Latin races, was developed 
by means of the edicts of the Roman praetors. 

It will be observed that the Italian system of adminis- 
trative law differs from that of every other nation. Ac- 
cording to the English principle, the ordinary courts have 
jurisdiction in all cases, and the idea of administrative law 
as an independent branch of jurisprudence is little known. 
In most of the continental countries, on the other hand, all 
matters involving the legality of official acts are reserved 
for a special class of courts, which have exclusive cogni- 
zance of those questions which constitute the domain of 
administrative law; but in Italy both classes of tribunals 
are called upon to decide the same questions, the ordinary 
courts being specially empowered to protect legal rights. 

1 Id., Art. 24. 2 Act of March 20, 1865, Art. 4- 3 Statuto, Art. 73. 



222 GREATER EUROPEAN GOVERNMENTS 

Weakness of the Judicial System 

As seen on the statute book, the Italian judicial system 
appears to be very good. It seems to provide the individual 
with more ample remedies, and a better guarantee against 
arbitrary conduct on the part of the officials, than can be 
found in most of the countries of continental Europe. But in 
fact the judiciary is not strong enough to protect the citizen 
effectually. This is chiefly due, no doubt, to the absence 
of those deep-seated traditions that are necessary to give 
the magistrates a controlling authority over public opinion. 
It is due also to the existence of the five independent Courts 
of Cassation, which prevents any one court from having 
the power that might be acquired by a supreme national 
tribunal; and indeed it is self-evident that a decentralized 
judiciary can hardly be expected to restrain a centralized 
administration. Nor is the protection afforded to the bench 
satisfactory. The constitution provides that judges, except 
in the lowest courts, shall be irremovable after three years 
of service, 1 and by statute they can be retired only on ac- 
count of illness, and removed only for crime or neglect of 
duty, and in these cases only with the approval of the Court 
of Cassation at Rome. But a judge is not protected against 
a transfer from one judicial post to another of the same rank, 
and although by royal decree a commission annually ap- 
pointed by the court at Rome must be consulted before 
such a transfer can be made, its advice is not binding on 
the government. 2 The judges are, therefore, by no means 
entirely independent of the executive, and complaints are 
often made that they are altogether too much under its 

1 Statuto, Art. 69. 

2 Brusa, pp. 277-278. In 1878 this decree was repealed for a time, and 
one hundred and twenty-two transfers were made in six months. Minghetti, 
pp. 134-135- 



ITALY 223 

control. It is impossible to say how far these complaints 
are justified, 1 but it is certain that the judiciary either has 
not enough power, or does not feel sufficiently free, to pro- 
tect individuals against an oppressive abuse of political 
power, especially in local matters. This is true even in 
tranquil times, while the wholesale resort to martial law 
by the proclamation of the state of siege during the troubles 
in Sicily and at Carrara some years ago shows that the 
courts find it hard to cope with disorder on any large 
scale. 2 

The judicial system has been dwelt upon here at what may 
seem an inordinate length because its condition is one of 
the most important factors in the present political condi- 
tion of the kingdom. 

The Church 

There is one institution in Italy which is not strictly a 
part of the government, but is so closely connected with it, 
and has so direct an influence on politics, that it cannot be 
passed over. This is the Catholic Church. Within the last 
quarter of a century every country in central Europe has 
found itself confronted with the Catholic question, and 
has been obliged to grapple with it; but the matter has a 

1 Writing in 1878, Jacini (/ Conservatori, p. 29) said that, so far, the ju- 
diciary had resisted all party pressure, but since that time this does not seem 
to have been true. See Minghetti, ubi supra; Turiello, Fatti, p. 316; Pro- 
poste, pp. 234-235; De Viti di Marco, " The Political Situation in Italy," 
Nineteenth Cent., Oct., 1895; Pareto, " LTtalie Economique," Revue des 
Deux Mondes, Oct. 15, 1891, Giornale dei Economisti, March, 1895, p. 353; 
Ruiz, Ann. Amer. Acad, of Pol. Set., Sept., 1895, p. 54; Wolffson, " Italian 
Secret Societies," Contemp. Rev., May, 1891; Lord, "Italia non Fara da 
Se," Nineteenth Cent., March, 1892. The charge that the courts were sub- 
ject to political influence was made by the Parliamentary committee on the 
bank scandals in December, 1894. 

2 Contrast with these events the Chicago riots of 1894, where not only 
the military authorities never superseded the judicial, but where the national 
troops were called into action solely by means of the United States courts. 



224 GREATER EUROPEAN GOVERNMENTS 

peculiar importance in Italy. Not because the Italian is 
fanatical. On the contrary, his intense religious fervor 
seems to have burned itself out during the Middle Ages, 
and has left him comparatively indifferent; yet he clings 
to the church with a tenacity that is out of proportion to 
his zeal. 1 This is due partly to the fact that he knows no 
other creed, partly to his conservative nature, and partly, 
perhaps, to the fact that the ceremonies and rites of the 
Catholic faith, having been moulded for the most part by 
his own race, are closely fitted to his temperament, and 
therefore continue to attract him strongly, especially on 
the aesthetic side. The nation is almost wholly Catholic; 
and to-day, as in the past, the church in Italy is assailed, 
not by heretics, but by her own children. 

Church and State 

Cavour proclaimed the doctrine of a free church in a free 
state; but although the church is more independent of the 
government than might have been expected, it was impos- 
sible to carry the principle out fully in a country where 
there is only one religious body, and where that body has 
always been intimately connected with public life. The 
church is not independent of the state in Italy in the same 
sense that it is in America ; and this fact has led some of the 
Italian advocates of the doctrine to give it an entirely dif- 
ferent meaning from that which it has here. They complain, 
for example, that the actual relation between church and 
state is based on the idea that the church is a private asso- 
ciation instead of a public institution, and lament that the 
state has surrendered too much its control over the educa- 

1 Sir Charles Dilke, in his Present Position of European Politics (pp. 261- 
262), quotes the saying that the Italians would be a nation of freethinkers 
if they had ever been known to think, and remarks that although the epi- 
gram is unfair, there is a certain measure of truth underlying it. 



ITALY 225 

tion of priests 1 — expressions which amount to a complaint 
that the church is too free. But, although the principle is 
not applied rigorously in Italy, it has been carried out to a 
considerable extent. The state has abandoned the right of 
nomination to ecclesiastical offices, which had existed in 
some of the former Italian principalities; and the bishops 
are no longer required to take an oath of allegiance to the 
king. 2 Moreover, the so-called exequatur and placet, that 
is, the requirement of permits from the government for the 
publication and execution of the acts of ecclesiastical au- 
thorities, have been given up. 3 The state has also renounced 
all control over the seminaries for priests in Rome, 4 and 
rarely interferes with those elsewhere; 5 and finally the 
church has been granted freedom of meeting, of publica- 
tion, and of jurisdiction in spiritual matters. 6 Conversely, 
the acts of the ecclesiastical authorities have ceased to be 
privileged. They have no legal force if they are contrary 
to law or violate private rights, and they are not exempt 
from the provisions of the criminal code. 7 

1 See, for example, Brusa, pp. 426-427, 429. 

2 Act of May 13, 187 1, Tit. ii, Art. 15. It has been decided that in the 
case of the lower clergy the oath was not dispensed with wherever it had 
been required by earlier laws (Brusa, p. 428) ; and even the bishops are not 
entirely independent of the state, for the royal exequatur is still required for 
the enjoyment of their revenues (Id., p. 437). At times these have actually 
been withheld, notably in 1877. Speyer, in Unsere Zeit, 1878, ii. 604. 

3 Act of May 13, 1871, Tit. ii. Art. 16. 

4 Id., Tit. i. Art. 13. 
6 Brusa, p. 438. 

6 Id., Tit. ii. Arts. 14, 16, 17. Religious processions outside the churches 
may be forbidden by the local authorities, if they are liable to interfere with 
public order or public health. Law of June 30, 1889, Art. 8. 

7 Act of May 13, 1871, Tit. ii, Art. 17. The Penal Code of 1888 specially 
punishes abuse of language by the clergy. Brusa, p. 61. 



226 GREATER EUROPEAN GOVERNMENTS 

The Monastic Orders 

A thorny question for the new kingdom was involved in 
the position of the monastic orders, many of which still 
held great tracts of land, but had long outlived their use- 
fulness and were felt to be an anachronism. The solution 
adopted, though almost a necessity, was drastic, and illus- 
trates how far the theory of a free church in a free state 
was at this time from being a reality. The order of Jesuits 
was absolutely excluded from the kingdom; l and even in 
the case of the other bodies, which had not aroused such 
violent antipathy, the government determined, while spar- 
ing the existing members, to forbid the enrollment of new 
recruits. By the statutes of 1866 and 1867, therefore, all 
these monastic institutions and most of the benefices without 
a cure of souls were suppressed, and their property trans- 
ferred to the state to be employed for the support of religion; 
but a pension for life was reserved to the present possessors, 
who were also allowed to remain in their establishments. 2 
Every traveler will remember the aged monks in white 
habits who might be seen wandering among the cloisters of 
the Val d' Ema, near Florence. These are the last represent- 
atives of a mighty order that once overspread Christen- 
dom; and with the spirit of romance which Italy cannot 
shake off even if she would, they have been allowed to drop 
away one by one until the monastery becomes silent for- 
ever. 

The convents were not the only great landowners in the 
church. Many of the higher secular clergy were also richly 
endowed. But there was a strong feeling that the soil of the 

1 Brusa, p. 56, note 4. 

2 Acts of July 7, 1866, and Aug. 15, 1867. See, also, Brusa, pp. 431-433. 
By an Act of 1873 these provisions were applied to Rome, but in a modified 
form. Brusa, lb. 



ITALY 227 

country ought to be controlled by laymen, and that the 
larger ecclesiastical incomes ought to be reduced. This 
feeling found its expression in the same statutes of 1866 and 
1867, by which all church lands, except those belonging to 
parishes, those used by bishops and other dignitaries, and 
buildings actually devoted to worship, were taken by the 
state and converted into perpetual five per cent annuities; x 
while all ecclesiastical revenues, not of a parochial nature, 
were taxed thirty per cent, or in other words partially 
confiscated. 2 

The Pope 

By far the most difficult question was presented by the 
papacy. The Holy See had ruled over a territory of con- 
siderable size extending across the peninsula from the Medi- 
terranean to the Adriatic. It claimed to trace its rights 
from a grant made in the fourth century by the Emperor 
Constantine the Great to Pope Sylvester, and in fact its 
dominion was as old and well founded as that of any 
monarch in Europe. It felt that the sovereignty over its 
own states — the so-called temporal power — was neces- 
sary for its independence, and that if the Pope lived in a 
city subject to another ruler he could not remain entirely 
free in spiritual matters. But the Italians felt no less 
strongly that their country would never be a complete 
nation until it included everything between the Alps and 

1 Act of July 7, 1866, Arts. 11-18. 

2 Act of Aug. 15, 1867, Art. 18. By the Act of July 7, 1866, Art. 31, the 
revenues of bishops exceeding 10,000 lire are taxed progressively for the 
benefit of the general fund for religion, the whole excess above 60,000 lire 
being so taken. But if, on the other hand, the income of a bishop falls be- 
low 6,000 lire, it is made up to that sum out of the general fund (Art. 19). 
Similar taxes for the benefit of the fund are imposed on other ecclesiastical 
revenues. In the Act of 1873, Rome was more gently treated. Brusa, 
pp. 432-433- 



228 GREATER EUROPEAN GOVERNMENTS 

the sea, with Rome as its capital, and this feeling was fully 
shared by the Romans themselves. 

The northern and eastern part of the Papal States was 
annexed to the new kingdom of Italy at the same time as 
Naples and Sicily, that is in i860; but Rome and the coun- 
try about it was protected by Napoleon III, whose power 
depended so much on the support of his ultramontane sub- 
jects that he could not safely desert the cause of the Pope. 
Italy chafed under his interference, and waited uneasily 
until the war with Prussia forced him to recall his troops. 
Then came the revolution that overturned his throne. An 
Italian army at once crossed the frontier of the Papal 
States, and entered Rome on September 20, 1870. 

The Law of the Papal Guarantees 

The problem before the government was a delicate one, 
because any appearance of an intention to treat the Pope 
as an Italian subject would have excited the indignation of 
the whole Catholic world, and might have led to foreign 
complications, or even to an armed intervention in favor 
of the temporal power. The cabinet determined, there- 
fore, that a law fixing definitely the position and privileges 
of the Holy See should be passed before the seat of govern- 
ment was moved to Rome. Recognizing the peculiar rela- 
tions of the Pope to other states, the ministers proposed to 
make this law one of international bearing, so that it would 
have an effect analogous to that of a treaty, but they 
yielded to the firm opposition of the Left in the Chamber, 
and the act was finally passed as a piece of domestic legis- 
lation. 1 This is the celebrated Law of the Papal Guar- 
antees, which was enacted in May, 1871, and remains 
unchanged at the present day. Its object is to insure the f ree- 

1 Petriccelli della Gattina, Storia d* Italia, pp. 93-94. 



ITALY 229 

dom of the Pope in the exercise of all his spiritual functions, 
and for that purpose it surrounds him with most of the 
privileges of sovereignty. His person is declared sacred and 
inviolable; assaults or public slander directed against him 
being punishable like similar offenses against the king. 
Public officials in the exercise of their duties are forbidden 
to enter his palace or its grounds; and the same exemption 
applies to the place of meeting of a Conclave or (Ecumenic 
Council. Searching any papal offices that have solely 
spiritual functions, or confiscating papers therefrom, is 
prohibited, and it is provided that priests shall not be 
punished or questioned for publishing, in the course of their 
duties, the acts of the spiritual authority of the Holy See. 
The Pope is accorded the honors of a sovereign prince, and 
persons accredited to him enjoy all the immunities of diplo- 
matic agents. He is guaranteed free intercourse with the 
bishops, and indeed with the whole Catholic world, mes- 
sages sent in his name being placed on the same footing as 
those of foreign governments. Moreover he is granted a 
perpetual annuity of over six hundred thousand dollars, 
which is entered in the great book of state debts, and is 
free from all tax. This grant he has always refused to 
accept, and every year it is returned to the treasury. 
Finally he is left in absolute possession of the palaces of the 
Vatican, the Lateran, and Castel Gandolfo, with all their 
buildings, gardens, and lands, free of taxes. 1 

It will be observed that this law — which is alleged, by the 
way,to have been faithfully carried out by the Italian govern- 
ment — assures to the Pope absolute freedom in the exercise 

1 This is the law of May 13, 1871, several sections of which have already 
been cited. There is a criticism of the legal situation of the Holy See from 
a papal standpoint by Comte Rostworowski, entitled " La Situation Inter- 
nationale du Saint-Siege," in the Ann. de VEcole Libre des Sciences Politiques, 
1892, p. 102. 



230 GREATER EUROPEAN GOVERNMENTS 

of his functions as head of the Catholic Church, and guards 
him against all personal disrespect. Nevertheless, neither 
Pius IX nor his successors have accepted it; and indeed 
they could not have done so without acknowledging the au- 
thority of the government by which it was enacted, and 
this they have never been willing to do. They have not 
ceased for a moment to protest against the destruction of 
the temporal power; in fact, they have avoided everything 
that could possibly be construed as a recognition of the 
Kingdom of Italy. The Pope has affected to consider him- 
self a prisoner, and never since the royal cannon opened a 
breach in the Roman walls at the Porta Pia has he placed 
his foot outside the grounds of the Vatican. 1 He even re- 
fused to allow the clerical party to vote for deputies to 
Parliament, on the ground that this would involve a tacit 
acknowledgment of the legality of the existing government; 
and thus a large portion of the Italian people took no part 
in national politics, although the same men voted freely 
and sometimes won victories at municipal elections. 2 Such 
a condition of things was very unfortunate, for it tended to 
create a hostility between religion and patriotism, and made 
it very hard for a man to be faithful both to his church and 
his country. If the Italians had any liking for other sects, 
these would no doubt increase rapidly; but as religion and 
Catholicism are synonymous terms in Italy, the antagonism 
between church and state merely stimulates skepticism and 
indifference. 

Difficulty of the Question 

It is not easy to see how the papal question will finally 
be solved. Pope Leo XIII was a man of great tact, and 
with marvelous dexterity he changed the policy of the 

1 Until 1888 he did not even appear in St. Peter's. 

2 In 1905 an encyclical of Pius X somewhat relaxed the prohibition. 



ITALY 231 

Vatican so as to bring it into harmony with the nineteenth 
century. He made a peace with Bismarck by which the 
Iron Chancellor virtually acknowledged defeat; and by his 
conciliatory tone towards the French Republic he made 
fair headway in checking the Radicals in France with their 
hatred of the church. Yet even Leo XIII was unable to 
come to terms with Italy. One thing is clear. Italy will 
never give up Rome, nor is there the slightest probability 
that any foreign country will try to force her to do so ; and, 
indeed, it is said that even in the Vatican the restoration 
of the temporal power is considered hopeless. 1 To the 
outside observer it hardly appears desirable in the interest 
of the papacy itself, because with the loss of its secular 
functions, the Holy See has gained enormously in ecclesiasti- 
cal authority. This is not an accident, for the destruction 
of the temporal power is one step in the long movement for 
the separation of church and state, which during the last 
hundred years has been breaking the local and national ties 
of the clergy in the different countries, and has thus made 
the Catholic Church more cosmopolitan, more centralized, 
and more dependent on its spiritual head. Such, however, 
is not the view of many ardent Catholics, who are so dis- 
satisfied with the present situation that a departure of the 
Pope from Rome has often been suggested; but although 

1 In an answer (" Italy, France, and the Papacy," Contemp. Rev., Aug., 
1 891) to an article entitled " The Savoy Dynasty, the Pope, and the Re- 
public," by an anonymous writer {Contemp. Rev., Apr., 1891), Crispi spoke 
of the possibility of a French intervention in favor of the temporal power 
as a real danger. One cannot help feeling that this must have been said 
rather for its effect than from conviction. In a previous answer to the same 
article ("Italy and France," Contemp. Rev., June, 1891), Crispi made the 
interesting statement that even in Rome only the highest church dignitaries 
want the temporal power, while over the rest of Italy the clergy never were 
papal, and are not so now. In a later number of the same Review the Triple 
Alliance and the papal question are further discussed by Emile de Laveleye 
(" The Foreign Policy of Italy," Contemp. Rev., Feb., 1892.) 



232 GREATER EUROPEAN GOVERNMENTS 

on more than one occasion a removal has been said to be 
imminent, it has always been in the highest degree unlikely, 
for the Holy See could not get from any other state in whose 
territory it might settle terms more favorable than those 
accorded by the Law of the Papal Guarantees; and even if 
it should accept a grant of complete sovereignty over some 
island or small tract of land, the loss in prestige from the 
change of residence would be incalculable. The veneration 
of the past still clings to Rome, and although the civic 
splendor of the Vatican is gone, the Pope bereft of his 
temporal power wields a greater spiritual influence than he 
has had for centuries. 



CHAPTER IX 

GERMANY: STRUCTURE OF THE EMPIRE 
Former Subdivision of Germany 

Cherbuliez has remarked that most countries which have 
grown in size have started with a compact territory and 
increased it by absorbing the adjacent lands, but that Prus- 
sia began with her frontiers and afterwards rilled in between 
them. The statement is almost literally true, for early in the 
seventeenth century the electors of Brandenburg, who were 
the ancestors of the kings of Prussia, acquired the large 
Duchy of Prussia on the Baltic and the Duchy of Cleves on 
the Rhine, possessions which form to-day very nearly the 
extreme limits of the Prussian monarchy on the east and 
west. At that time these duchies did not touch the electors' 
other territories, and in fact until half a century ago several 
states were so wedged in among the Prussian dominions as 
to cut the kingdom quite in two. Nor was this the case with 
Prussia alone. The whole map of Germany as it stood in the 
last century was a mass of patches of different color mingled 
together in bewildering confusion. Not only were some of 
the principalities inconceivably small, but they often con- 
sisted in part of outlying districts at a distance from one 
another, and entirely surrounded by the estates of some 
other potentate. The cause of such a state of things is to be 
found in the excessive development of the feudal system, 
which treated sovereignty as a private right of the ruler, so 
that princes dealt with their fiefs very much as men do with 
their lands to-day. They acquired them freely in all direc- 



234 GREATER EUROPEAN GOVERNMENTS 

tions by inheritance, by marriage, and even by purchase, 
and, what was worse, at their death they divided them as 
they pleased among their sons. Still another source of con- 
fusion was presented by the bishops and other high church 
dignitaries, who held large estates which they ruled as tem- 
poral sovereigns. The result was that Germany was divided 
in a most fantastic way among several hundred princes, who 
owed, it is true, a shadowy allegiance to the Emperor as 
head of the Holy Roman Empire, but for all practical 
purposes were virtually independent. 

The Growth of Prussia 

Almost alone among the German states Prussia was 
steadily gaining in size and power. Her growth may be 
traced primarily to the Constitutio Achillea of 1473, which 
forbade the splitting up of the monarchy among the sons of 
the electors, and thus kept all their dominions together; 
but it was due chiefly to the thrift, the energy, and the sagac- 
ity of the rulers of the House of Hohenzollern. At the close 
of the thirty years' war, in 1648, the Great Elector obtained 
possessions which made his domains larger than those of any 
other German state except Austria, and in the next cen- 
tury the annexations of Frederic the Great more than 
doubled the population of his kingdom. The growth of 
Prussia was suddenly checked by an event that tended ulti- 
mately to hasten its development. This was the outbreak 
of the French Revolution and the career of Bonaparte. 
When a series of victories had laid Germany at his feet, 
Napoleon suppressed a large number of petty principalities, 
including all the ecclesiastical ones, and combined the 
smaller states that remained into the Confederation of the 
Rhine. He also deprived Prussia of half her territory, think- 
ing by these means to reduce her to impotence, and create 



STRUCTURE OF THE EMPIRE 235 

in the heart of Germany a body that would always be de- 
voted to the cause of France. But in fact the petty prin- 
cipalities had been too small to act separately or to combine 
effectively, and too independent to be made serviceable by 
any sovereign; and by suppressing them Napoleon had 
given the Germans a capacity for organization which was 
used against him as soon as the tide turned. 1 

The Germanic Confederation 

After his overthrow Germany was reorganized by the 
treaty of Vienna, and the states, which now numbered only 
thirty-nine, were formed into a loose confederation. This 
was not properly a federal union, but rather a perpetual in- 
ternational alliance, the states remaining separate and 
independent, except for matters affecting the external and 
internal safety of Germany. The only organ of the Con- 
federation was a diet composed of the diplomatic agents of 
the different states, who acted like ambassadors, and voted 
in accordance with the instructions they received from their 
respective governments. It had power to declare war and 
make peace, to organize the federal army, to enact laws for 
the purpose of applying the constitution, and to decide dis- 
putes between the states; but it had no administrative 
officers under its command, the federal laws being executed 
entirely by the officials of the states. Hence the only means 
of getting its orders carried out in case a state refused to 
obey them was by the process known as federal execution, 
which meant that the diet called on one or more members 

1 This is very well stated by Colonel Malleson in his Refounding of the 
German Empire, pp. 4-6. Napoleon prophesied that within fifty years all 
Europe would be either Republican or Cossack. One of the chief causes of 
the failure of this prediction has been the creation of a united Germany, 
which Napoleon himself unwittingly helped to bring about. 



236 GREATER EUROPEAN GOVERNMENTS 

of the Confederation to attack the recalcitrant state, and 
by invading its territories to compel submission. 

The procedure in the diet was complicated. For ordinary 
matters it acted by sections called curice, when the eleven 
largest states had one vote apiece, the other twenty-eight 
being combined into six groups each of which had a single 
vote. For constitutional questions, on the other hand, and 
those relating to peace and war, the diet proceeded in 
plenum, and in that case each of the smaller states had one 
vote, while the fourteen largest had two, three, or four votes 
apiece. 1 This distribution of votes was by no means in pro- 
portion to population, for the largest states were much 
more than four times as large as the smallest, but it was a 
distinct recognition of an inequality of rights on the part of 
the states, and as such it still retains an especial importance 
because the arrangement of the votes in the plenum has 
continued almost unchanged in one of the chief organs of the 
Empire to-day. It must not be supposed, however, that the 
influence of the states in the diet was determined by the 
number of their votes, for Austria, which had a permanent 
right to the presidency of the assembly, and Prussia, which 
had a permanent right to the vice-presidency, exercised in 
fact a controlling authority. When these two great powers 
agreed that they had their own way; when they disagreed, 
which often happened, the opinion of Austria usually 
prevailed. 

The Attempt at Union in 1848-4Q 

The wars of Napoleon did a great deal more for Germany 
than to suppress petty principalities and give rise to a 
clumsy confederation. They awakened a sentiment of Ger- 
man nationality. At first this was only a sentiment, and for 

1 Six of the states had four votes, five had three, three had two, and 
twenty-five had one. 



STRUCTURE OF THE EMPIRE 237 

a long period it had no practical results. It was especially 
strong among the Liberals, and grew stronger as time went 
on; but during the reaction that followed the overthrow of 
Napoleon, the Liberals had little influence, until the con- 
vulsions of 1848 and 1849 brought them to the front. At 
this time they tried hard to bring about a national union of 
Germany, but they were sadly hampered by their theoretical 
views and their want of political experience. Their aim was 
a German state constructed on an ideal model, and they 
lacked the quality which is essential to real statesmanship — 
the power to distinguish the elements in the existing order of 
things which have a solid basis, to seize upon these, and 
adapt them to the end in view. Hence their efforts ex- 
pended themselves in declamation and academic discussion, 
and came to nothing. In May, 1848, they succeeded in 
bringing together at Frankfort a National German Parlia- 
ment elected by universal suffrage, and if this body had 
proposed quickly any rational plan for a union of Germany, 
the chances of its adoption would have been very good; for 
every government in the country had been forced to give 
way before the tierce onslaught of the Liberal movement. 
But unfortunately more than four months of precious time 
were consumed in debating the primary rights of the citizen, 
and when these were finally disposed of the tide was begin- 
ning to ebb. At last, in March, 1849, a constitution was 
agreed upon, and the imperial crown was tendered to the 
King of Prussia; but the offer came too late. Had it been 
made in the preceding summer it might have been accepted, 
but now the revolution had spent its force. Austria, at first 
paralyzed by insurrection, had now recovered from the 
shock, was rapidly putting down her rebellious subjects, and 
under the able leadership of Prince Schwartzenberg was 
determined to prevent any reorganization of Germany that 



238 GREATER EUROPEAN GOVERNMENTS 

would diminish her influence. After a feeble struggle 
Prussia yielded to her more determined rival, the revolu- 
tionary movement came to an end, and the old Confeder- 
ation was restored. 

Bismarck 

Again a period of reaction set in, which lasted about ten 
years, when Gemany was thrilled by the events in Italy, 
and the Liberals again became powerful. Whether they 
would have avoided their former mistakes and succeeded 
better it is impossible to say, for just at this time there ap- 
peared upon the scene a man who was destined to stamp his 
will on Germany, and change the whole face of European 
politics. That man was von Bismarck. He belonged to the 
lesser Prussian nobility, which is the most conservative class 
in the race; but he was of far too large a calibre to be bound 
down by traditional prejudices; and indeed he had already 
formed very decided opinions of his own on the subject of 
German unity. He had served as a representative of Prussia 
at the diet, and had learned that a German nation was im- 
possible so long as the two great powers — Austria and 
Prussia — were contending for a mastery. He saw that the 
first step must be the forcible expulsion of Austria from all 
share in German politics; and he believed that union could 
never be brought about by argument, that the Germans 
could not be persuaded, but must be compelled to unite, 
that the work must be done, as he expressed it, by blood 
and iron. 

The Constitutional Conflict 

An important advance towards closer relations between 
the States had, indeed, been made long ago by the creation 
of the Zollverein or customs union. This had been founded 
by Prussia in the early part of the century, and had grad- 



STRUCTURE OF THE EMPIRE 239 

ually been extended until it included almost all the German 
states except Austria, which had been jealously excluded 
by the Prussian statesmen; but valuable as the Zollverein 
was in teaching the people their common interests, Bismarck 
was convinced that no further progress could be expected 
without the use of force. Now it was precisely on this point 
that his methods differed from those of the Liberals, because 
war formed no part of their programme, and for that reason 
they were unable to understand his policy. In 1859 they 
had obtained a majority in the lower house of the Prussian 
Parliament, and had very soon become involved in a quarrel 
with King William over the reorganization of the army on 
which he had set his heart. 1 In 1862 the King turned to 
Bismarck and made him the President of the Council. Bis- 
marck submitted to the chamber a budget containing the 
appropriations for the military changes, and when the cham- 
ber refused to pass it he withdrew it, and governed without 
any budget at all. This he was enabled to do, because the 
taxes were collected under standing laws which required no 
reenactment, and in fact could not be changed without the 
consent of the crown; and because a doctrine was developed 
that in case the king and the two houses were unable to 
agree upon appropriations, the king was entitled to make 
all those expenditures which were necessary in order to carry 
on the government in accordance with the laws regulating 
the various branches of the administration. The Liberals 
were furious at this budgetless rule, but Bismarck proceeded 
in spite of them. He persuaded Austria to join Prussia in 
wresting the duchies of Schleswig and Holstein from Den- 
mark in 1864, and then contrived to quarrel with her about 
the disposition to be made of them. The majority in the 

1 William became Regent on Oct. 7, 1858, and on the death of his brother 
Frederick William IV, on January 2, 186 1, he became King. 



240 GREATER EUROPEAN GOVERNMENTS 

German diet sided with Austria, and ordered the troops of 
the Confederation mobilized against Prussia. Then fol- 
lowed the war of 1866, and the crushing defeat of Austria 
and the smaller German states that took her part. 

The North German Confederation 

Bismarck had originally intended to compel all the states 
except Austria to form a federal union, but the intervention 
of Napoleon III forced him to abandon the plan and limit 
the Confederation to the country north of the river Main. 1 
He therefore determined as a compensation to increase the 
direct strength of Prussia by annexing the states that had 
fought against her. 2 Hanover, Electoral Hesse-Nassau, 3 
and Frankfort, besides Schleswig-Holstein, were accordingly 
incorporated in Prussia, while with the other states north 
of the Main a new federal union was formed under the name 
of the North German Confederation. 4 This had for its presi- 
dent the Prussian king; and for its legislature two cham- 
bers — one the Reichstag, a popular assembly elected by 
universal suffrage, and the other the Bundesrath, or federal 
council, which was copied from the old diet, and composed 
in the same way of the plenipotentiaries of the different 
states, but was endowed with peculiar and extensive powers. 
Austria was excluded from all participation in German 

1 Luxemburg and Limburg, which belonged to Holland, had been a part 
of the old Confederation, but were allowed to drop out at this time, and were 
not included in the reorganization of Germany. This was true also of the 
tiny principality of Lichtenstein in the south. 

2 Von Sybel, Begriindung des Deutschen Retches, book xix, ch. ii. 

3 Also called Hesse-Cassel to distinguish it from Hesse-Darmstadt or 
grand-ducal Hesse, which, being the only Hesse remaining in existence as a 
separate state, is hereinafter called simply Hesse. 

4 The constitution of the Confederation was first agreed upon by the 
governments of the several states, then accepted with slight modifications 
by a National Assembly elected by universal suffrage for the purpose, and 
finally ratified by the legislatures of the states. 



STRUCTURE OF THE EMPIRE 24I 

politics; while the four States south of the Main — Bavaria, 
Wurtemberg, Baden, and Hesse * — became independent, 
and were expressly left at liberty to form a separate union 
among themselves. As a matter of fact, they made offensive 
and defensive alliances with the Confederation, and formed 
with it a Zollverein or customs union, whose organs were 
the two chambers of the Confederation reinforced by repre- 
sentatives from the southern states. Every one felt that the 
union of Germany was incomplete so long as these states 
were not a part of it; but Bavaria and Wurtemberg were 
reluctant to surrender their independence; and the enthu- 
siasm aroused by the war with France in 1870 was required 
to raise the sentiment for German nationality to such a pitch 
as to sweep them into line. Even then they demanded and 
obtained special privileges as the price of their adhesion; but 
at last all the difficulties were arranged, and in the autumn 
of 1870 treaties were made with the four southern states 
whereby they joined the union. The name of the Confedera- 
tion was changed at the same time to that of " German 
Empire," the president being given the title of Kaiser; and 
in the course of the following winter the changes and addi- 
tions entailed by these treaties were embodied in a new draft 
of the constitution. 2 

1 This is Hesse-Darmstadt. It lay on both sides of the Main, but the 
part on the north of that river was already included in the North German 
Confederation. 

2 Cf. Laband, Deutsches Staatsrecht, 2d ed., ch. i. In 1873 three amend- 
ments were made in this instrument. The first (that of Feb. 25) abolished 
the provision limiting the right to vote in the Reichstag, on those matters 
which by the constitution are not common to the whole Empire, to the 
representatives of the states affected. The second (that of March 3) put 
the lighthouses, buoys, etc., along the coast under the control of the federal 
government; and the third (that of Dec. 20) extended the legislative power 
of the Empire over the whole field of civil and criminal law. It had previously 
covered contracts, commercial law, and criminal law. In 1888 (Art. 24), 
an amendment was adopted changing the term of the Reichstag from three 



242 GREATER EUROPEAN GOVERNMENTS 

The Constitution of the Empire 

This instrument has nothing about it that is abstract or 
ideal. It was drawn up by a man of affairs who knew pre- 
cisely what he wanted, and understood very well the limita- 
tions imposed upon him, and the concessions he was obliged 
to make to the existing order of things. His prime object 
was to create a powerful military state; and hence, as has 
been pointed out, the articles on most subjects are compara- 
tively meagre, but those on the army, the navy, and the 
revenue are drawn up with a minuteness befitting the 
by-laws of a commercial company. 1 

to five years. In 1893 (Art. 53, § 5), an amendment was adopted about 
the method of conscription for the navy. In 1904 (Art. 70), the article on 
the finances was amended to authorize levying contributions on the states, 
in addition to federal taxes. In 1905 (Art. 59, § 1), the article on com- 
pulsory military service was changed, chiefly to substitute two for three 
years of active service. In May, 1906 (Art. 32), an amendment was made 
permitting the payment of members of the Reichstag; and in June of 
the same year (Art. 38, § 2), an amendment was made about the allow- 
ance to the states for the cost of collecting the excise on beer. In May, 
191 1 (Art. 6a), an article was added virtually making Alsace-Lorraine a 
member of the Confederation; and in December, 191 1 (Art. 54), a change 
was made about the tolls chargeable for improvements in navigation. As 
this goes to print, an amendment is proposed that a declaration of war shall 
require the consent of the Reichstag. 

Substantial changes in the fundamental law of the Empire have been 
made without a formal modification of the text. (See Laband, i. 48-49, 51.) 
Some of the German jurists maintain that such a practice is wrong (von 
Ronne, Staatsrecht des Deutschen Reiches, 2d ed., pp. 31-34; Meyer, Lehrbuck 
des Deutschen Staatsrechts, p. 416); others that it is quite proper, provided 
the majority required in the Bundesrath for a formal amendment of the 
constitution is in fact obtained. (Laband, i. 545-549; Arndt, Verfassung 
des Deutschen Reiches, pp. 290-291.) 

1 Lebon, Etudes sur VAllemagne Politique, In trod., p. iii. 

Amendments to the constitution can be made by a majority vote in the 
Reichstag, but are vetoed by fourteen adverse votes in the Bundesrath. 



STRUCTURE OF THE EMPIRE 243 

Nature of the Confederation 

Before proceeding to a description of the organs of the 
state, it will be worth while to examine the nature of the 
Confederation. We are in the habit of speaking of the Ger- 
man Empire as a federal government, and rightly; but we 
must bear in mind that it departs essentially from the type 
which we commonly associate with that term, and which is 
embodied in our own constitution. We conceive of a federal 
system as one in which there is a division of powers between 
the central government and the states according to sub- 
jects, so that in those matters which fall within the sphere of 
federal control the central government not only makes the 
laws, but executes them by means of its own officials. Thus 
Congress enacts a tariff; the United States custom house 
collects the duties; and the federal courts decide the ques- 
tions that arise under the law. But all this is very different 
in Germany. There the legislative power of the central 
government is far more extensive than in this country, for it 
includes almost everything that is placed under the control 
of Congress and many other matters besides. In addition to 
such subjects as customs duties and taxes, the army and 
navy, the consular service, and the protection of foreign 
commerce, which are obviously essential, the list comprises 
many matters of domestic legislation. It covers not only the 
posts and telegraphs, 1 transportation on streams running 
through more than one state, and extraditions between the 
states, but also in general terms railroads, 2 roads and canals, 
citizenship, travel, change of residence, the carrying on 
of trades, also the regulation of weights and measures,- 
of coinage and paper money, of banking, patents, copy- 
rights, and of medical and veterinary police. Moreover, it 

1 Except in Bavaria and Wurtemberg. 2 Except in Bavaria. 



244 GREATER EUROPEAN GOVERNMENTS 

includes the regulation of the press and associations, and 
finally the whole domain of ordinary civil and criminal law 
and of judicial proceedings. All these things are declared 
subject to imperial legislation and supervision. 1 

The administrative power of the Empire, on the other 
hand, is very small, the federal laws being carried out in the 
main by the officers of the states as under the Confederation 
of 1 815. Except, indeed, for foreign affairs, the navy, and 
to some extent the army, and the postal and telegraphic 
service, the executive functions of the Empire are limited for 
the most part to the laying down of general regulations, and 
a supervision of their execution by the several states. 2 Thus 
the federal government can enact a tariff, make regulations 
which shall govern the customhouse officers, and appoint 
inspectors to see that they are carried out; but the duties 
are actually collected by state officials. 3 One naturally asks 
what happens if a state refuses or fails to carry out a federal 
law. The matter is reported to the Bundesrath, which 
decides any controversy about the interpretation of the 
law. 4 But suppose the state persists in its refusal to ad- 
minister the law, what can the federal government do ? It 
cannot give effect to the law itself, nor has it any officials for 

1 Art. 4 of the constitution and the amendment of Dec. 20, 1873. 

2 See Laband, § 66. In the case of the army (Const. Arts. 63-66) and 
the posts and telegraphs (Art. 50), the highest officers are appointed by the 
Kaiser, who gives them their orders, while the subordinates are appointed 
by the states. 

3 As a rule the whole net revenue flows into the imperial treasury. In 
case the receipts of the Empire are not equal to its expenses, the deficiency 
is covered by means of contributions called Matricularbeitrage assessed on 
the different states in proportion to their population. (Const. Art. 70, and 
see Laband, 6th ed., § 45.) This was originally intended to be a subsidiary 
and exceptional source of revenue, but owing to the quarrel between Bis- 
marck and the Reichstag on the subject of federal taxation, the Matricular- 
beitrage became large for many years. (Cf. Lebon, Allemagne, p. 106 et seq.) 

4 Const. Art. 7, § 3. 



STRUCTURE OF THE EMPIRE 245 

the purpose. Its only resource is federal execution — that 
is, an armed attack on the delinquent state — which can be 
ordered by the Bundesrath, and carried out by the Kaiser. 1 
This last resort has never been used, nor is it likely to be, 
because the Kaiser is also the King of Prussia, and Prussia 
alone is not only larger than any other state, but larger than 
all the rest put together. Execution against Prussia is there- 
fore doubly out of the question; and any other state would 
be so easily overpowered that it is certain to submit, rather 
than provoke an appeal to force. 

The Privileges of Prussia 

Another conception that we associate with federal govern- 
ment is an equality of rights among the members. But in 
the German Empire all is inequality. It would, indeed, have 
been impossible to make a federation on really equal terms 
between a number of states, one of which contained three 
fifths of the total population, while the other twenty-four 
contained altogether only two fifths. The compact could 
not fail to resemble that between the lion and the fox, or 
rather a compact between a lion, half a dozen foxes, and a 
score of mice. The larger states are accorded all sorts of 
privileges, and so much of the lion's share of these falls to 
Prussia that it is hardly too much to say that she rules Ger- 
many with the advice and assistance of the other states. In 
the first place she has a perpetual right to have her king the 
Kaiser. 2 Secondly, amendments to the constitution — al- 
though requiring only an ordinary majority vote in the 
Reichstag — are defeated in the Bundesrath if fourteen 
negative votes are thrown against them, and as Prussia has 
seventeen votes in that body, she has an absolute veto on all 

1 Const. Art. 19, and see Laband, i. 105-106. 

2 Const. Art. 11. 



246 GREATER EUROPEAN GOVERNMENTS 

changes of the constitution. 1 Besides this, it is expressly 
provided that in the case of all bills relating to the army, the 
navy, the customs duties, or the excises, and in the case of 
all proposals to revise the administrative regulations for 
collecting the revenue, the vote of Prussia in the Bundesrath 
is decisive if cast in favor of maintaining the existing 
institutions. 2 In other words, Prussia has a veto on all 
measures for making changes in the army, the navy, or the 
taxes. She has also the casting vote in case of a tie in the 
Bundesrath, 3 and the chairmanship of all the standing 
committees of that body. 4 

These are Prussia's constitutional privileges; but she has 
others obtained by private agreement with her smaller 
partners; for the several states are at liberty to make con- 
ventions or treaties with each other in regard to the affairs 
that remain subject to their control. 5 When the North Ger- 
man Confederation was formed, universal military service 
and a uniform organization like that of Prussia were intro- 
duced into all the states, but the army was not made exclu- 
sively a national nor left entirely a state institution. 6 The 

1 Const. Art. 78. In the North German Confederation a two thirds vote 
in the Bundesrath was necessary for a change in the constitution, but when 
the South German states were admitted, Prussia had no longer a third of 
the delegates, and in order to preserve her veto the proportion required was 
increased to three quarters. Finally at the instance of Bavaria, which 
wanted to enlarge the power of the states of the second size, it was agreed 
that fourteen negative votes should be enough to defeat an amendment to 
the constitution. Arndt, p. 290; Robinson, The German Bundesrath, p. 40. 

2 Const. Arts. 5, 35, and 37. 

3 Const. Art. 7. 

4 Const. Art. 8; Laband, i. 264. Except the committee on foreign affairs, 
where, as will be explained hereafter, it would be of no use to her. 

6 Laband, § 63. To some extent the states are at liberty to make separate 
conventions with foreign powers, and they have a right to send their own 
representatives to foreign courts. Laband, § 71. 

6 Const. Arts. 57-68. The last eight of these articles do not apply to 
Bavaria, and only partially to Wurtemberg. The expense of maintaining 



STRUCTURE OF THE EMPIRE 247 

constitution provides that the military laws shall be made 
by the Empire, 1 and declares that the forces of the country 
shall be a single army under the command of the Kaiser, 
whose orders they are bound to obey. It gives him a right to 
inspect and dispose of the troops, and to appoint all officers 
whose command includes the entire contingent of a state. 
It provides also that the selection of the generals shall be 
subject to his approval, but it leaves to the states the ap- 
pointment of all inferior officers, and the management of 
their troops in other respects. Now these reserved rights 
were of little value, and all but three of the states transferred 
them to Prussia, chiefly in consideration of an agreement on 
the part of the Kaiser not to remove the troops from their 
own territory except in case of actual necessity. Thus the 
contingents of these states are recruited, drilled, and com- 
manded by Prussia, and form, in short, an integral part of 
her army. 2 

A number of conventions of a similar character affecting 
other public matters, such as the postal service and the 
jurisdiction of the courts, have been concluded between the 

the army is borne by the Empire. Unlike the army, the navy is a purely 
national institution. Art. 53. 

1 The double position of the Prussian monarch comes out curiously here, 
for the constitution provides: first, that the military laws and regulations 
of Prussia shall be in force throughout the Empire, until a comprehensive 
imperial military law shall be enacted; and second that any future general 
orders of the Prussian army shall be communicated by the military commit- 
tee of the Bundesrath to the commanders of the other contingents for ap- 
propriate imitation. 

2 Some of the states transferred all their rights (Baden with a provision 
that her troops should form a separate corps) ; others retained certain rights, 
mainly of an honorary nature, but agreed that their troops should be united 
with the Prussian army, and that Prussia should appoint the officers. Only 
Bavaria, Saxony, and Wurtemberg still exercise the military functions re- 
served to them by the constitution. Cf. Laband, § 94, iii; Schulze, Lehrbuch 
des Deutschen Staatsrechts, § 335; Meyer, Lehrbuch, § 197. 



248 GREATER EUROPEAN GOVERNMENTS 

states; but the most comprehensive compact of all was 
made by Waldeck. The ruler of this little principality was 
crippled with debts, and unable to raise the money required 
for the reorganization of his army. So he sold his govern- 
mental rights as a whole to the King of Prussia, retired from 
business, and went to Italy to live upon his income; while the 
Prussian government, having bought the goodwill of his 
trade, proceeded to carry it on as his successor. There is 
something decidedly comical in treating the right to govern 
a community as a marketable commodity, to be bought and 
sold for cash; but to Bismarck the matter presented itself as 
a perfectly natural business transaction, and in fact the con- 
tract bears a strong resemblance to the lease of a small 
American railroad to a larger one. 

Privilege of Other States 

Such are the special privileges of Prussia. Those reserved 
to the other states are far less extensive. By the constitu- 
tion Hamburg and Bremen had a right to remain free ports, 
outside of the operation of the tariff laws; l but both of them 
have now surrendered this privilege. 2 The other special 
rights are mostly enjoyed by the southern states, and were 
given to them as an inducement to join the Confederation. 
Thus Bavaria, Wurtemberg, and Baden were exempted from 
imperial excises on brandy and beer, and given a right to 
lay excises of their own on these articles. 8 Bavaria and 
Wurtemberg have their own postal and telegraph services, 

1 Const. Art. 34. 

2 The treaty for this purpose was made with Hamburg in 188 1, and went 
into effect Oct. 1, 1888. That with Bremen was made in 1885. For an ac- 
count of these treaties and the way they were brought about, see Blum, Das 
Deutsche Reich zur Zeit Bismarck's, p. 360 et seq.; Leband, ii. 901-904. 

3 Const. Art. 3$. But in 1887 they gave up their privileges in regard to 
brandy. See Blum, p. 532; Leband, ii. 920, 923-924. 



STRUCTURE OF THE EMPIRE 249 

which are subject only to general imperial laws. 1 Except 
for the principle of universal military service, and the agree- 
ment to conform to the general organization of the imperial 
army, Bavaria has in time of peace the entire charge of her 
own troops, the Kaiser having only a right to inspect them; 
while Wurtemberg, although not so much favored as this, 
has greater military privileges than the remaining states. 2 
Bavaria is further exempt from imperial legislation in regard 
to railroads, 3 and to residence and settlement; 4 and finally, 
by the constitution or by military convention, Bavaria, 
Saxony, and Wurtemberg have a right to seats on the com- 
mittees of the Bundesrath on foreign affairs and on the army 
and fortresses. 5 In order to guarantee more effectually these 
privileges, it is provided that they shall not be changed 
without the consent of the state entitled to them. 6 

The Empire and the Old Confederation 

From this description of the privileges of the different 
states it is evident that the German Empire is very far from 
being a federal union of the kind with which we are familiar. 

1 Const. Art. 52. 

2 Treaties of Nov. 23, 1870, with Bavaria; and Nov. 25, 1870, with 
Wurtemberg; incorporated in the constitution by a reference in the Appen- 
dix to Part XI. 

3 Except in the case of lines that have a strategic importance. Const. 
Art. 46. 

* Const. Art. 4, § 1. 

5 Const. Art. 8; Laband, i. 113. By the treaty of Nov. 23, 1870 (Schluss- 
protokoll, Art. ix), Bavaria has a right to preside over the Bundesrath in 
the absence of Prussia, but as this never happens, the privilege is merely 
honorary. 

6 Const. Art. 78. Meyer (Lehrbuch, p. 42J) and Zorn (Staatsrecht des 
Deutschen Retches, pp. 88-93) think this provision applies only to the limita- 
tions on the competence of the Empire, and not to the privileges given to the 
several states in the organization of the government, such as the presidential 
rights of Prussia, the allotment of the votes in the Bundesrath, the seats on 



250 GREATER EUROPEAN GOVERNMENTS 

It is rather a continuation of the old Germanic Confedera- 
tion, with the centre of gravity shifted from the states to the 
central government, and the preponderating power placed 
in the hands of Prussia ■ — the other large states retaining 
privileges roughly in proportion to their size. 1 

Its chief organ of government is still the old diet, re- 
named the Bundesrath or Federal Council, to which have 
been added on one side a Kaiser, who is commander-in-chief 
of the forces, and represents the Empire in its relation with 
foreign powers; and, on the other, an elected chamber, 
called the Reichstag, created for the sake of stimulating 
national sentiment and enlisting popular support as against 
the local and dynastic influences which have free play in the 
Bundesrath. Let us consider each of these organs in detail. 

committees, etc. Their opinion, however, is not generally accepted. La- 
band, i. 110-114; Schulze, § 249; v. Ronne, ii. 43-48. It is universally 
agreed that an affirmative vote in the Bundesrath by the delegate of the 
state is a sufficient consent by that state to a law affecting its privileges so 
far as the Empire is concerned; but there is a difference of opinion on the 
question how far the ruler of the state is bound, or can be bound, by state 
law to consult his parliament. Laband, i. 114-117; Schulze, book ii. p. 19; 
v. Ronne, ii. 36-43; Meyer, p. 422; Zorn, pp. 94-98. 

1 In saying this I am speaking only of the political structure of the gov- 
ernment, and do not mean to touch the philosophical question whether the 
sovereignty has or has not been transferred from the states to the Empire. 
This point has been the subject of elaborate argument, and in fact the same 
juristic questions about the origin and nature of the federal government have 
been discussed in Germany as in the United States. (For a reference to these 
discussions, see Laband, i. 30-33, 52 et seq., and see especially Jellinek, Die 
Lehre von den Staatenverbindungen.) Some of the German publicists main- 
tain that the sovereignty resides in the Bundesrath, a view which, as Burgess 
points out in his Political Science (ii. 90-^93) is somewhat artificial. For those 
who think as I do, that sovereignty is not in its nature indivisible, the ques- 
tion loses much of its importance. (Cf. Essays on Government, chapter on the 
Limits of Sovereignty.) 



STRUCTURE OF THE EMPIRE 25 1 

The Reichstag 

The Reichstag is elected for five years by direct universal 
suffrage and secret ballot. 1 The voters must be twenty-five 
years old, and not in active military service, paupers, or 
otherwise disqualified. 2 The members are chosen in single 
electoral districts fixed by imperial law. 3 These had origi- 
nally a hundred thousand inhabitants apiece, 4 but they have 
not been revised for more than a score of years, and with 
the growth of the large cities have gradually become very 
unequal. In the case of Berlin the disproportion is enormous, 
for the city has now over two million inhabitants, but is still 
represented by only six members. The government, how- 
ever, is not anxious for a redistribution of seats, because 
Berlin elects Radicals and Socialists, who form a trouble- 
some opposition — a tendency which is also true of other 
large centres. As in the United States, no district can be 
composed of parts of different states, so that every state, 
however small, elects at least one representative. The three 
hundred and ninety-seven seats are in fact distributed as 
follows: Prussia has two hundred and thirty-five, or about 
three-fifths of the whole number, Bavaria forty-eight, Sax- 
ony twenty-three, Wurtemberg seventeen, Alsace-Lorraine 
fifteen, Baden fourteen, Hesse nine, Mecklenburg-Schwerin 
six, Saxe- Weimar three, Oldenburg three, Brunswick three, 
Hamburg three, Saxe-Meiningen two, Saxe-Coburg-Gotha 
two, Anhalt two, and all the rest one each. 5 As regards the 

1 Cf. Laband, § 34; Const. Arts. 20, 24. Until 1888 the period was three 
years. 

2 Wahlgesetz, May 31, 1869, §§ 1-3. Every voter who has been a citizen 
of any state for a year is eligible in any district in the Empire without regard 
to residence. Soldiers in active service, though not allowed to vote, are 
eligible. {Id., § 4.) 

3 Id., § 6. 4 Except in the smallest states. 

6 Wahlgesetz, § 5; Const. Art. 20; Act of June 25, 1873 (Alsace-Lorraine), 
§3. 



252 GREATER EUROPEAN GOVERNMENTS 

method of election the system of ballotage prevails; that is, 
an absolute majority is required for election on the first 
ballot, and if no one obtains this, a second ballot takes place 
which is confined to the two candidates who have received 
the largest number of votes. 1 

Universal suffrage was looked upon as an experiment of a 
somewhat hazardous character, and Bismarck insisted on 
the non-payment of the members of the Reichstag as a safe- 
guard. 2 This was a bone of contention with the Liberals for 
many years — the Reichstag having repeatedly passed bills 
for the payment of members, which the Bundesrath until 
1906 rejected. 3 The absence of remuneration was not with- 
out effect, for it deterred university professors and other 
men of small means, usually of liberal views, from accepting 
an office which entails the expense of a long residence in Ber- 
lin; but it did not fulfill the predictions that were made 
either by its foes or its friends, for it did not cause a dearth 
of candidates, or discourage the presence of men who made 
politics their occupation. 4 The provision had, however, a 
meaning one would hardly suspect. In 1885, when the 
Socialist representatives were paid a salary by their own 
party, Bismarck, claiming that such a proceeding was illegal, 
caused the treasury to sue them for the sums of money they 
had received in this way, and, strange to say, the Imperial 
Court of Appeal sustained the suits. 5 The object of with- 

1 Wahlgesetz, § 12. Lebon (p. 82) thinks this last provision, by cutting 
out all the candidates but the two highest on the list, favors the government 
and hampers the free expression of opinion. 

2 Const. Art. 32. 

3 In 1906 a measure providing for the payment of members was enacted. 
Since that date an annual allowance of 3000 marks (about $750) per year 
has been paid, with a reduction of 25 marks for each day's absence. The 
annual allowance is hardly large enough to be termed a salary. 

4 Blum, pp. 36-37. 

6 Laband, § 38; Lebon, p. 78. The members cannot be arrested during 



STRUCTURE OF THE EMPIRE 2$3 

holding pay from the members was, of course, to prevent the 
power of the poorer classes from becoming too great; but a 
much more effectual means to the same end is the habit of 
holding elections on working days, instead of holding them 
on Sundays, as is done in France and most of the other 
Catholic countries. 

The Committee System 

The Reichstag has the ordinary privileges of a legislative 
assembly, electing its own president, making its own rules, 
and deciding upon the validity of elections. 1 Its internal 
organization conforms to the pattern generally followed in 
continental chambers. At the beginning of each session the 
members are divided by lot into seven Abtheilungen or sec- 
tions, which correspond to the bureaux of the French cham- 
bers, but differ from these in the important respect that they 
last during the whole session, instead of being renewed at 
short intervals. The duties of the sections consist in making 
a preliminary examination of the validity of elections to the 
Reichstag, and in the choice of committees, each section 
electing one or more committeemen, according to the impor- 
tance of the committee. 2 As in France and Italy, however, 
the choice by the sections is really cut and dried before- 
hand. It is in fact controlled by the Senioren-Convent, a 
body composed of the leaders of the different parties, who 
determine in advance the number of seats on the committee 
to which each party shall be entitled. 3 Bills are not always 

the session except for certain flagrant offenses, and if a criminal prosecution 
is pending against one of them the Reichstag can order him to be set at 
liberty (Const. Art. 31); but in fact it has not always been easy to make 
this last right effective; Lebon, pp. 34-85. 

1 Const. Art. 27. 

2 Laband, ii. 327-329. Unlike the French bureaux, their choice is not 
confined to members of their own section. Lebon, p. 88. 

3 Lebon, lb.; Dupriez, i. 526; Leband, i. 328. 



254 GREATER EUROPEAN GOVERNMENTS 

referred to a committee; but it is noteworthy that the more 
advanced Liberals have constantly urged such a reference in 
the case of government bills, because the authoritative in- 
fluence of the ministers is thereby diminished, and greater 
opportunity is given for criticism and amendment; while the 
more moderate parties, following the lead of the govern- 
ment, have often preferred an immediate discussion of im- 
portant measures by the full house, without the intervention 
of any committee at all. 

The Powers of the Reichstag 

The powers of the Reichstag appear very great on paper. 
All laws require its consent, and so do the budget, all loans, 
and all treaties which involve matters falling within the 
domain of legislation. It has a right to initiate legislation, 
to ask the government for reports, and to express its opinion 
on the management of affairs. 1 In reality, however, its 
powers are not so great as they seem. The constitution pro- 
vides, for example, that the budget shall be annual, 2 but the 
principal revenue laws are permanent, and cannot be 
changed without the consent of the Bundesrath, 3 while the 
most important appropriation, that for the army, is virtually 
determined by the law fixing the number of the troops, and 
this has hitherto been voted for a number of years at a time. 4 
The chief function of the Reichstag is, in fact, the considera- 

1 Const. Arts. 5, 11, 23, 69, 73; Laband, § 33. 

2 In 1867 Bismarck wanted triennial sessions, and in 1888, when the 
term of the Reichstag was changed to five years, he wanted the sessions held 
only every other year. 

3 It is to be remembered, moreover, that the bulk of the civil adminis- 
tration is in the hands of the states, which provide the means of carrying 
it on. 

4 In 1 87 1, for three years; in 1874, 1880, and 1887 for seven years; and 
since 1893 for five years, until in 1905 for an indefinite period; and then 
again in 191 1 for five years. 



STRUCTURE OF THE EMPIRE 255 

tion of bills prepared by the Chancellor and the Bundesrath. 
These it criticizes and amends very freely; but its activity 
is rather negative than positive, and although important 
measures have occasionally been passed at its instigation, 1 
it cannot be said to direct the policy of the state either in 
legislation or administration. 2 

The Right of Dissolution 

The influence of the Reichstag is also diminished by the 
fact that it can be dissolved at any time by the Bundesrath 
with the consent of the Kaiser. 3 In most constitutional gov- 
ernments at the present day the power of dissolution is the 
complement of the responsibility of the ministers, and is 
used, at least in theory, to ascertain whether the cabinet pos- 
sesses the confidence of the nation. But in Germany it exists 
without any such responsibility, and hence is simply a means 
of breaking down resistance in the Reichstag. It has, in- 
deed, been used for this purpose on a number of occasions : 
first, in 1878, when the Reichstag refused to pass a bill for 
the repression of agitation by the Socialists; afterwards in 
1887, when it refused to pass the bill fixing the size of the 
army for seven years; and again in 1893, when it refused to 
sanction changes proposed in the military system. In each 
case the new Reichstag supported the plans of the govern- 
ment, and thus a serious conflict with the Chancellor was 
avoided, and the question of the ultimate authority of the 

1 A striking example of this was the amendment to Art. 4 of the con- 
stitution extending the legislation of the Empire to cover ordinary civil and 
criminal law. 

2 Cf. Lebon, pp. 113-116. The debate on the budget is used as an occasion 
for criticism of the government, and for the expression of opinion, but in the 
budget itself few changes are made. The reductions have little importance, 
while the rejection of an appropriation asked for is extremely rare, and an 
increase is almost unknown. Dupriez, i. 543-544. 

3 Const. Art. 24. 



256 GREATER EUROPEAN GOVERNMENTS 

different organs of the state was postponed. The last dis- 
solution took place in 1906 because the Reichstag refused to 
vote the government's colonial estimates. 

Interpellations 

The rules of the Reichstag provide for interpellations, but 
the question to whom these shall be addressed involves one 
of the paradoxes, or contradictions between theory and prac- 
tice, which are common in the government of the Empire. 
There is no imperial cabinet, and the Chancellor, who is the 
only minister, has no right, as such, to sit in the Reichstag. 
In theory he comes there only as one of the delegates to the 
Bundesrath — all whose members have the privilege of 
being present in the Reichstag, where a special bench is re- 
served for them. They appear as the representatives of the 
united governments of Germany, and are entitled to speak 
whenever they choose; for the Bundesrath is not only a col- 
lection of delegates from the governments of the different 
states, but has also some of the attributes of an imperial 
cabinet. In form, therefore, interpellations are addressed 
to the Bundesrath, but in fact they are communicated to the 
Chancellor, who usually answers them himself, or allows one 
of his subordinates to do so. A debate may ensue if de- 
manded by fifty members, but it is not followed by an order 
of the day expressing the opinion of the House, 1 and, in- 
deed, interpellations have no such importance as in France 
and Italy, because the parliamentary system does not exist; 
that is, the Chancellor does not resign on an adverse vote of 
the Reichstag, nor does he feel obliged to conform to its 
wishes. 

1 Lebon, p. 105; v. Ronne, p. 268. A resolution can, of course, be moved 
in accordance with the ordinary rules of procedure, and this was done on 
the occasion of the expulsion of the Poles in Jan. 1886. Blum, pp. 498-501. 
Dupriez (i. 545) comments on the Polish incident, 



STRUCTURE OF THE EMPIRE 257 

The Bundesrath 

Let us now examine more closely the Bundesrath — that 
extraordinary mixture of legislative chamber, executive 
council, court of appeal, and permanent assembly of diplo- 
mats. It is the most thoroughly native feature of the Ger- 
man Empire, and has, therefore, a peculiar vitality. The 
Bundesrath is composed of delegates appointed by the 
princes of the states and the senates of the free cities; 1 
and it is to be observed that Alsace-Lorraine, which was 
taken from France in 187 1, was not strictly a member of the 
union, but only Reichsland or imperial territory, and hence 
had no right to a representative in the Bundesrath, al- 
though as a part of the Empire it elected members of the 
Reichstag. Its position was in some ways analogous to that 
of one of our Territories, while the other parts of the Empire 
correspond to our states. Curiously enough, Alsace-Lor- 
raine was allowed in 1879 to send to the Bundesrath dele- 
gates who, like the representatives of the Territories in 
Congress, could debate, but could not vote; 2 and finally in 
191 1, it was allotted three regular delegates in that body, 
but as they are appointed by the statthalter who is entirely 
under the control of the Kaiser — that is the King of Prus- 
sia — it was provided that their votes should not be counted 
when the votes of Prussia would not prevail without them. 3 

The seats in the Bundesrath are distributed among the 
states and cities in such a way that each of them is en- 
titled to the same number of votes as in the diet of the old 

1 Const. Arts. 6-10. 

2 Laband, i. 219-220. In the law of 1879, as originally drawn up by Bis- 
marck, Alsace-Lorraine was entitled to ordinary delegates to the Bundes- 
rath; but that body, in order not to increase the seats virtually controlled 
by the King of Prussia, insisted that they should have no vote. Blum, 
pp. 635-636. The number of these delegates was four. 

3 Const. Art. 6a. 



258 GREATER EUROPEAN GOVERNMENTS 

Germanic Confederation when that body proceeded in 
plenum, except that Bavaria, as part of the inducement to 
join the Empire, was given six delegates instead of four, 1 
and Prussia obtained those of the states she absorbed in 
1866. 2 There are in all fifty-eight members, Prussia having 
seventeen, Bavaria six, Saxony and Wurtemberg four each, 
Baden and Hesse three each, Brunswick and Mecklenburg- 
Schwerin two each, and the remaining fourteen states and 
three free cities one each. But Prussia has really three 
votes more, because the contract for the government of 
Waldeck already mentioned gave her the vote of that state, 
and in 1884-85 she caused the Duke of Cumberland to be 
excluded from the succession in Brunswick, got a Prussian 
prince appointed perpetual regent, and thus obtained the 
virtual control of these two votes also; 3 so that she has in 
reality twenty votes out of the fifty-eight. This, of course, 
is much less than her proportion of the population; 4 but 
twenty votes in the same hand count far more than the same 
number held by different states, and she has only to win ten 
additional votes — those of Bavaria and Wurtemberg, for 
example, or those of some of the smaller states — in order to 
have an absolute majority. In fact, she has usually had her 

1 She had six votes in the Bundesrath of the Zollverein from 1866 to 1871. 

2 Laband, i. 220. The votes acquired by Prussia in this way were those 
of Hanover, 4; Hesse Cassel, 3; Holstein-Lauenburg, 3; Nassau, 2; and 
Frankfort, 1. 

3 The Duke was excluded because as son and heir of the late King of 
Hanover he insisted on his right to that kingdom, and refused to acknow- 
ledge its incorporation in Prussia. His son, who married the Kaiser's 
daughter, has recently been restored to the dukedom. 

4 The population of Germany on Dec. 1, 1910, was about sixty-five mil- 
lions, of which Prussia had forty millions, Bavaria nearly seven millions, 
Saxony nearly five millions, Wurtemberg two millions and a half, Alsace- 
Lorraine and Baden a couple of millions apiece, Hesse and Hamburg each 
one million, and the other eighteen states together not much more than four 
millions. 



STRUCTURE OF THE EMPIRE 259 

way, although on several notable occasions the other states 
have combined and defeated her. This happened in 1877, 
when the seat of the Imperial Court of Appeal was fixed at 
Leipsic instead of Berlin as she desired; l and in 1876 on the 
more important question of the imperial railroad law. At 
that time Bismarck refrained altogether from introducing 
into the Bundesrath a bill for the purchase of railroads by 
the Empire, knowing that it would be defeated by the op- 
position of the middle-sized states, although the project was 
one on which he had set his heart. 2 Again, in 1879, another 
railroad bill was killed in the Bundesrath by the opposition 
of Bavaria, Saxony, and Wurtemberg, 3 and in the same year 
a conference of the finance ministers of the states refused to 
consent to the tobacco monopoly. 4 

Character of the Bundesrath 

The members of the Bundesrath are diplomats rather 
than senators. 5 They enjoy at Berlin the privileges of 
foreign ambassadors, and are appointed and removed at 
will by the states they represent — which also pay them or 
not as they please. The votes they cast are the votes of the 
states, not those of its representatives, and it is therefore 
provided that all the delegates of a state must vote alike. 
In fact, all the votes belonging to a state are counted with- 
out reference to the number of delegates actually voting; 6 

1 Cf. Blum, pp. 146-147. The vote in favor of Leipsic was thirty to 
twenty-eight; and it is noteworthy that if Prussia had then controlled the 
votes of Brunswick the majority would have been the other way. 

2 Cf. Blum, pp. 165-168. 

3 Blum, p. 345. 

4 Blum, p. 312. On this point, however, they yielded some years later. 

5 The constitution (Art. 10) provides that the Kaiser shall vouchsafe 
to them the protection accorded to ambassadors, while the members of the 
Reichstag have the ordinary privileges of members of a parliament. 

6 Laband, i. 223. 



260 GREATER EUROPEAN GOVERNMENTS 

and thus the seventeen votes of Prussia, for example, can be 
cast in her name by a single representative, just as at the 
meeting of a private corporation a properly authorized 
agent can vote on all the shares of stock belonging to his 
principal. The delegates, moreover, vote according to the 
instructions of their home government, and the constitution 
expressly declares that votes not instructed shall not be 
counted. 1 This last provision has given rise to some com- 
ment. It does not mean that a delegate must produce his 
instructions before he is allowed to vote. On the contrary, 
the Bundesrath appears to take no cognizance of instruc- 
tions, which may, indeed, be of any kind, including an au- 
thority to vote as the delegate thinks best; and it is even 
asserted that a vote is valid whether it is in accord with the 
instructions or not. 2 The provision in the constitution is 
probably a mere survival; but it has been suggested that its 
object is, on the one hand, to allow a delegate to excuse him- 
self from voting on the plea that he has not been instructed, 
and on the other to make it clear that a vote can be taken, 
although the delegates have not all received instructions, 
thus taking away an excuse for delay that might other- 
wise be urged. 3 

A delegate is usually an officer of the state he represents, 
often one of its ministers, or even the head of its cabinet, 
and in any case the ministers of a state are responsible ac- 
cording to its own laws for their instructions to the dele- 
gates. 4 In fact, the ministers are frequently questioned in 
the local Landtag or legislature, about the instructions they 
have given, or propose to give; and resolutions are some- 

1 Const. Art. 7. 

2 Laband, i. 229. 

3 Cf. Robinson, " The German Bundesrath," Pub. Univ., Pa. Pub. Law 
Series, iii. no. 1, 34-35. 

4 Laband, i. 225-227. 



STRUCTURE OF THE EMPIRE 26 1 

times passed in regard to them. 1 If, indeed, the strict parlia- 
mentary system existed in any of the German states, the 
cabinet would no doubt be held responsible to the Land- 
tag for these instructions as for every other act of the 
government. 

Although the delegates are frequently officers of the state 
they represent, they are not necessarily even its citizens 
and it is not uncommon for several of the smaller states, 
from motives of economy, to empower the same man to act 
as delegate for them all jointly. This habit grew to such an 
extent that in April, 1880, when a stamp act proposed by the 
Chancellor was seriously amended by a vote of thirty to 
twenty-eight, thirteen of the smaller states were not repre- 
sented by any delegates of their own, their votes being cast 
by two delegates from other states. Bismarck tendered his 
resignation in disgust, and this caused the Bundesrath to re- 
consider its action and vote the tax. But the Chancellor 
was not satisfied. He complained that the practice of sub- 
stitution deprived the Bundesrath of the presence of mem- 
bers who were open to argument, and he insisted on the 
adoption of a rule dividing the session into two periods, in 
one of which the important matters should be considered, 
and delegates from all the states should be present, while 
the other should be devoted to current affairs, when the 
states might appoint substitutes if they pleased. This rule 
was adopted, and for the convenience of the delegates the 
former period is made as short as possible. 2 

The Bundesrath is in its nature unlike any other body in 
the world, and its peculiarities can be explained only by a 
reference to the diet of the old Germanic Confederation. It 

1 Interpellations, for example, were presented and answered in several 
states in regard to the proposal for the purchase of railroads by the Empire, 
to which allusion has already been made (Blum, p. 167). 

2 Blum, pp. 348-349; Laband, i. 256-257. 



262 GREATER EUROPEAN GOVERNMENTS 

is not an international conference, because it is part of a 
constitutional system, and has power to enact laws. On the 
other hand, it is not a deliberative assembly, because the 
delegates vote according to instructions from home. It is 
unlike any other legislative chamber, inasmuch as the mem- 
bers do not enjoy a fixed tenure of office, and are not free to 
vote according to their personal convictions. Its essential 
characteristics are that it represents the governments of the 
states, not their people, and that each state is entitled to 
a certain number of votes which it may authorize one or 
more persons to cast in its name, these persons being its 
agents, whom it may appoint, recall, or instruct at any time. 
The true conception of the Bundesrath, therefore, is that of 
an assembly of the sovereigns of the states, who are not, 
indeed, actually present, but appear in the persons of their 
representatives. 

Its Internal Organization 

The internal organization of the Bundesrath is in accord 
with its federal character and the privileged position of the 
larger states. We have already seen that the seventeen 
votes of Prussia are more than enough to defeat any con- 
stitutional amendment, and that she is expressly given a 
veto on all proposals to change the laws relating to the 
army or the taxes. Besides this, the constitution declares 
that the Kaiser, that is, the King of Prussia, shall appoint 
the Chancellor, who presides over the body and arranges its 
business, through whose hands all communications from 
the Reichstag and all motions and petitions must pass, 1 
and who is in fact always one of the Prussian delegates. 2 

1 Const. Art. 15. Cf. Robinson, p. 37. 

2 Most of the German jurists argue that the Chancellor must always be 
a Prussian delegate, because Art. 15 of the constitution implies that he must 
be a member of the Bundesrath, and the Kaiser has power to create such 



STRUCTURE OF THE EMPIRE 263 

But the constitution goes into much smaller details in regu- 
lating privileges of the states, and prescribes even the com- 
position of the committees; for the Germans have shown a 
remarkable astuteness in this matter, and nowhere else in 
the world can we find the important influence of committees 
in a legislative body so thoroughly recognized. There are 
eight standing committees of the Bundesrath established by 
the constitution. 1 The members of one of these — that on 
the army and fortresses — are appointed by the Kaiser; but 
it is provided by the constitution that Bavaria, and by mili- 
tary convention that Saxony and Wurtemberg, shall have 
places upon it. The members of the committee on maritime 
affairs are also appointed by the Kaiser; while the commit- 
tees on taxes and customs, on trade, on railroads, posts and 
telegraphs, on justice, and on accounts, are elected every 
year by the Bundesrath itself. On each of the last seven 
committees, five states at least must be represented, of 
which one must always be Prussia, whose member is always 
the chairman. But here again we have an illustration of the 
fact that the Bundesrath is an assembly of diplomats and not 
of senators, for the practice followed by the Kaiser or the 
Bundesrath — whichever has the power of appointment — 
is to designate the states to be represented, and the delega- 
tion from each of those states chooses one of its own mem- 
bers to sit on the committee. The seat on a committee 
belongs, therefore, not to the representative selected, but 
to the state which he represents. There is one other corn- 
members only in his capacity as King of Prussia. Laband, i. 253-254; 
Meyer, Lehrbuch, § 124; Schulze, ii. 91. Hensel (Die Stellung des Reichs- 
kanzlers, pp. 10-12) denies this and quotes Bismarck in his favor. The 
Chancellor is authorized to commit the duty of acting as chairman to a sub- 
stitute, and in fact he rarely presides in person. See Dupriez, i. 522, and 
Blum, p. 143. 
1 Const. Art. 8. 



264 GREATER EUROPEAN GOVERNMENTS 

mittee provided for by the constitution — that on foreign 
affairs. Its functions are peculiar; for it does not report like 
the other committees, but its members listen to the com- 
munications made to them by the Chancellor, and express 
the views of their respective governments thereon. It is thus 
in reality a means by which the ministers of the larger states 
may be consulted upon foreign affairs; and it consists of 
representatives of Bavaria, Saxony, Wurtemberg, and two 
other states designated every year by the Bundesrath. As 
its only function is to consult with the Chancellor, who is 
virtually the Prussian minister for foreign affairs, Prussia 
has no seat upon it, and in her absence Bavaria presides. 1 

Another illustration of the federal character of the Bun- 
desrath is to be found in the provision that on matters not 
common to the whole Empire — such, for example, as the 
excise on beer, from which Bavaria, Wurtemberg, and Baden 
enjoy an exemption — only those states which are inter- 
ested can vote. 2 There was at first a similar provision for 
the Reichstag, but it was felt to be inconsistent with the 
spirit of a national house of representatives, and was 
repealed. 3 

Powers of the Bundesrath 

The powers of the Bundesrath are very extensive, and 
cover nearly the whole field of government. It is a part of 
the legislature, and every law requires its assent. 4 But, more 

1 There are also four standing committees not provided for by the con- 
stitution: those on Alsace-Lorraine, on the constitution, on rules, and on 
railroad rates. All the standing committees may sit when the Bundesrath 
is not in session. On the subject of the committees, see Laband, 6th ed., 
1912, § 11, v. 

2 Const. Art. 7. 

3 Amend. Feb. 24, 1873. 

4 Including treaties that fall within the domain of legislation, Const. 
Art. 11. Each state has the right of initiative (Art. 7), which is, of course, 
most frequently used by Prussia. 



STRUCTURE OF THE EMPIRE 265 

than this, it has the first and last word on almost all the 
laws, for the Reichstag has not succeeded in making its 
right of initiative in legislation very effective, and by far the 
larger part of the statutes (as well as the budget) are pre- 
pared and first discussed by the Bundesrath. They are then 
sent to the Reichstag, and if passed by that body, are again 
submitted to the Bundesrath for approval before they are 
promulgated by the Kaiser. 1 The Bundesrath may there- 
fore be said to be not only a part of the legislature, but the 
main source of legislation. 

It is also a part of the executive. As such, it has power to 
make regulations for the conduct of the administration, and 
to issue ordinances for the completion of the laws, so far as 
this power has not been specially lodged by statute in other 
hands. 2 In regard to finance its authority is even more ex- 
tensive, for it has been given many of the functions of a 
chamber of accounts. 3 It enjoys a share of the power of ap- 
pointment, for it nominates, among other officials, the judges 
of the Imperial Court, and elects the members of the Court 
of Accounts; while collectors of taxes and consuls can be 
appointed only with the approbation of its committees. 4 
Under this head of executive power must also be classed the 
provisions by which its consent is required for a declaration 

1 Laband, i. 542; Schulze, ii. 118. 

2 Const. Art. 7. It exercises this power with great freedom. Robinson, 
pp. 50-53. There is some difference of opinion how far this power extends. 
Laband, i. 236-237; v. Ronne, i. 213-215; Arndt, pp. 115-119. Arndt has 
also published a treatise on this subject, Das V erordnungsrecht des Deutschen 
Retches. It is also empowered to decide upon defects that appear in the exe- 
cution of the laws. Const. Art. 7, § 3. The meaning of this clause has been 
much discussed. Laband, i. 238-242, 246; v. Ronne, i. 215-216; Arndt, 
Verfassung des Deutschen Reiches, p. 119; Robinson, pp. 56-59. 

3 Laband, i. 244-246. 

4 Laband, i. 242-243. 



266 GREATER EUROPEAN GOVERNMENTS 

of war, 1 for a dissolution of the Reichstag, 2 and for federal 
execution against a refractory state. 3 The Bundesrath, 
moreover, acts in some ways like a ministry of state, for it 
designates one or more of its members to support in the 
Reichstag the measures it has approved; and in fact a prac- 
tice has grown up of informing the Reichstag during the 
progress of a debate what amendments to a bill the Bundes- 
rath is willing to accept. 4 But the federal nature of the 
Bundesrath comes into play again curiously here, for each 
of the delegates also represents in the Reichstag his par- 
ticular government, and can express its views, although 
contrary to those of a majority of the members. 5 

The Bundesrath has no little power of a judicial or semi- 
judicial nature. It decides disputes between the imperial 
and state governments about the interpretation of imperial 
statutes. 6 It is virtually a court of appeal in cases where 
there is a denial of justice by a state court. 7 It decides con- 
troversies between states, which are not of the nature of 
private law, if appealed to by one of the parties; 8 and, 
finally, when a constitutional question arises in a state 
which has no tribunal empowered to decide it, the Bundes- 
rath must try to settle it by mediation if requested to do so 
by one of the parties, or if this fails, it must try to dispose of 
the matter by imperial legislation. 9 

1 Except on the ground that an attack has been made on the territory 
of the Empire. Const. Art. n. 

2 Const. Art. 24. 4 Laband, i. 537, n. 5. 

3 Const. Art. 19. 5 Const. Art. 9. 

6 This is deduced from Const. Art. 7, § 3. 

7 Art. 77. 

8 Const. Art. 76. If unfitted to decide the question, it can substitute for 
itself some other body, and this it did in 1877 in the case of the controversy 
between Prussia and Saxony in regard to the Berlin-Dresden railroad, select- 
ing the Court of Appeal of Lubeck. Laband, i. 249, note 2. 

9 Const. Art. 76, § 2. 



STRUCTURE OF THE EMPIRE 267 

Privacy of Meetings 

The Bundesrath has not only far more extensive powers 
than the Reichstag, but it has also certain privileges that 
enhance its prestige and increase its authority. Thus the 
Reichstag cannot be summoned to meet without the Bundes- 
rath, whereas the latter can sit alone and must in fact be 
called together at any time on the request of one third of its 
members. 1 Unlike the Reichstag, moreover, the order of 
business in the Bundesrath is not broken off by the ending 
of a session, but is continuous, so that matters are taken 
up again at the point where they were left, and thus its work 
is made far more effective. 2 The most important privilege it 
enjoys, however, is that of excluding the public from its 
meetings. 3 This has given it the advantage of concealing 
to some extent its internal differences, and has enabled it to 
acquire a reputation for greater unanimity, and conse- 
quently to exert more influence than it would otherwise 
possess. Privacy, indeed, would seem to be almost as essen- 
tial to the Bundesrath, as to the cabinet in a parliamentary 
government, or to an Anglo-Saxon jury. It is easy to per- 
ceive that the twelve jurors would seldom agree, if the public 
were allowed to witness the mysterious process of reaching a 
verdict; and it is equally clear that harmony in the Bundes- 
rath would be very seriously imperiled, if its galleries were 
filled with spectators. One can imagine how the newspapers 

1 Const. Arts. 13-14. 

2 Laband, i. 253. 

3 The constitution does not provide whether the sessions shall be public 
or not, and in fact they have always been secret (v. Ronne, i. 210-211). A 
brief report of the matters dealt with and the conclusions reached is given 
to the press after each session, but the Bundesrath can vote to withhold 
from the public all information about any matter, and the rules provide 
that the oral proceedings both in the Bundesrath and its committees shall 
be kept secret in all cases. Laband, i. 259. 



268 GREATER EUROPEAN GOVERNMENTS 

would gloat over the last altercation between the Chancellor 
and the representative of Bavaria or Saxony, and how hard 
it would be for the contending parties to make the conces- 
sions necessary to effect an agreement after their differences 
had been discussed in public. The work of the Bundesrath 
must be an unending series of compromises, and com- 
promise is a thing with which the world at large has little 
sympathy. If, therefore, the meetings of the Bundesrath 
were open, it would be a hotbed of dissensions between the 
governments of the different states, instead of a bond of 
union and a means of mutual understanding. 

Actual Influence of the Bundesrath 

In regard to the power and influence actually wielded by 
the Bundesrath, the most contradictory statements are 
made. It is said on the one hand to be the most important 
body in the Empire, 1 and on the other that it is a mere nul- 
lity which moves almost entirely at the dictation of Prussia. 2 
Both these statements are largely true, for considered as an 
independent council with a will of its own the Bundesrath is 
a nullity, because it derives its impulse exclusively from out- 
side forces; but, considered as an instrument by means of 
which the governments of the larger states, and especially of 
Prussia, rule the nation, it is probably the most important, 
although the least conspicuous, organ in the Empire. The 
extent of Prussia's authority in the Bundesrath cannot be 
accurately determined, owing to the secrecy of the proceed- 
ings. That her will, or rather the will of the Chancellor 
acting in her name, is the chief moving and directing force, 
is evident; but that he is not influenced by the opinions of 
the other states, that he does not modify his plans in con- 

1 Robinson, p. 43. 

2 Lebon, pp. i45~ I 5i; Dupriez, i. 47 8, 517-523. 



STRUCTURE OF THE EMPIRE 269 

sequence of their objections, or make compromises with 
them on contested points, it seems hazardous to assert. The 
members are usually wise enough not to talk about their 
differences in public, and hence these are only partly known 
to the world. At one time the minister of Wurtemberg com- 
plained openly in the Reichstag that bills were presented to 
the Bundesrath drawn up in a complete form by Prussian 
officials, and filled exclusively with a Prussian spirit; 1 but 
we know that this has not always been the case, and that 
important measures have frequently been considered and 
discussed by the ministers of all the larger states before they 
were introduced at all. 2 We know also that in more than one 
instance Bismarck found it impossible to persuade the 
Bundesrath to adopt his views, and that on one occasion 
he thought a threat of resignation necessary to compel sub- 
mission. In this case the threat produced the desired result, 
but it may well be doubted whether it would have the same 
effect in the mouth of any one but the Iron Chancellor, 
whose strong will dominated also the Reichstag and the 
throne. 3 

The Kaiser 

We now come to the Kaiser. 4 The title seems to imply an 
hereditary sovereign of the Empire, but from a strictly legal 
point of view this is not his position. He is simply the King 
of Prussia, and he enjoys his imperial prerogatives by virtue 
of his royal office. There is, in fact, no imperial crown, and 
the right to have her king bear the title, and exercise the 

1 See Blum, p. 140. 

2 This was notably true in the case of the Gerichtsverfassunggesetz in 1873 
(Blum, p. 141). 

3 Lebon (p. 147) thinks that Prussia has a good deal of influence in the 
appointment of delegates by the other states, and refers to the case where 
Bismarck procured the recall of the Bavarian representative in 1880. 

4 Cf. Const. Arts. 11-19. 



270 GREATER EUROPEAN GOVERNMENTS 

functions of Kaiser, is really one of the special privileges of 
Prussia. The language of the constitution is: " The presi- 
dency of the union belongs to the king of Prussia, who bears 
the title of German Kaiser." The succession is therefore 
determined solely by the law of the Prussian Royal House, 
and in case of incapacity the Regent of Prussia would, ipso 
facto, exercise the functions of the office. 1 

His Powers as Kaiser and King 

It has been said that as commander-in-chief of the army 
and navy the Kaiser has in theory the personal direction of 
military matters, but that in all others he acts as the delegate 
of the confederated governments, under the direction of the 
Bundesrath; 2 and even if this statement is not strictly ac- 
curate, it gives a very fair idea of his prerogatives. He has 
charge of foreign affairs, makes treaties subject to the limita- 
tions already mentioned, and represents the Empire in its 
relation to other countries, to the states, or to individuals. 
He declares war with the consent of the Bundesrath, and 
carries out federal execution against a state when it has been 
ordered by that body. He summons and adjourns the cham- 
bers, and closes their sessions, and with the consent of the 
Bundesrath he can dissolve the Reichstag. He promul- 
gates the laws, and executes them so far as their administra- 
tion is in the hands of the Empire, subject, however, to the 
important qualification that most of the administrative 
regulations are made by the Bundesrath. He appoints the 
Chancellor and all other officers, except in cases where the 
Bundesrath has been given the right of appointment or con- 
firmation; but it must be remembered that the laws are 
mainly administered by the state governments under federal 
supervision, and hence there are comparatively few federal 
1 Laband, i. 202-204. 2 Lebon, pp. 154-155. 



STRUCTURE OF THE EMPIRE 271 

officials to appoint. In short, the executive power of the 
central government is very limited; and even that limited 
power is shared by the Bundesrath. 

The Kaiser has, therefore, very little power as such, ex- 
cept in military and foreign matters. His authority as 
Kaiser, however, is vigorously supplemented by his func- 
tions as King of Prussia. Thus as Kaiser he has no initiative 
in legislation; 1 and indeed he is not represented in the Reich- 
stag at all; for the Chancellor, strictly speaking, appears 
there only as a member of the Bundesrath. 2 But as King of 
Prussia the Kaiser has a complete initiative by means of the 
Prussian delegates to the Bundesrath whom he appoints. 
As Kaiser he has no veto, but as king he has a very exten- 
sive veto — for it will be remembered that the negative vote 
of Prussia in the Bundesrath is sufficient to defeat any 
amendment to the constitution, or any proposal to change 
the laws relating to the army, the navy, or the taxes. 

His functions as Kaiser and as king are, indeed, so inter- 
woven that it is very difficult to distinguish them. As 
Kaiser he has supreme command of the army and appoints 
the highest officers. As King of Prussia he appoints the 
lower officers, and has the general management of the 
troops over most of Germany. As Kaiser he instructs the 
Chancellor to prepare a bill. As king he instructs him to 
introduce it into the Bundesrath > and directs how one third 
of the votes of that body shall be cast. Then the bill is laid 
before the Reichstag in his name as Kaiser, 3 and as king he 

1 Laband, i. 537. Strictly speaking, the initiative in the Bundesrath be- 
longs to the states, and in the Reichstag it is confined to the members. 
Laband, i. 534. 

2 Cf. Lebon, pp. 155-156; Dupriez, i. 534. If, as the German jurists 
maintain, the Chancellor's right to preside in the Bundesrath depends on his 
being a Prussian delegate, the Kaiser, as such, is not represented in the 
Bundesrath at all. 

3 Const. Art. 16. 



272 GREATER EUROPEAN GOVERNMENTS 

directs the Chancellor what amendments to accept on behalf 
of the Bundesrath, or rather in behalf of the Prussian delega- 
tion there. After the bill has been passed and become a law, 
he promulgates it as Kaiser, and in most cases administers 
it in Prussia as king; and finally as Kaiser he supervises his 
own administration as king. This state of things is by no 
means so confusing to the Germans as might be supposed; 
for it is not really a case of one man holding two distinct 
offices, but of the addition of certain imperial functions to 
the prerogatives of the King of Prussia. The administration 
of the country is vested in the sovereigns of the states, 
among whom the King of Prussia is ex officio president; and 
until one has thoroughly mastered this idea, it is impossible 
to understand the government of Germany. 1 

The Chancellor 

There is no imperial cabinet, and the only federal minister 
is the Chancellor, who has subordinates but no colleagues. 2 
The reason for this is to be found partly in Bismarck's per- 
sonal peculiarities, and partly in the nature of the ties that 
bind Prussia to the Empire. In the first place, Bismarck pre- 
ferred to stand alone, and did not want to be hampered by 
associates. He had had experience enough of the Prussian 
cabinet, where each of the ministers was highly independent 
in the management of his own department, and he did not 
care to create for himself a similar situation in imperial mat- 
ters. After he had decided on a course of action, he hated, 
as he said, to waste his time and strength in persuading his 
colleagues, and all their friends and advisers, that his policy 
was a wise one. Hence he would not hear of an imperial 

1 Schulz (Preussen, in Marquardsen, pp. 33-34) remarks that the two 
offices are so closely bound together that it is impossible to think of them 
separately. 

2 Laband, i. 348; and see § 40. 



STRUCTURE OF THE EMPIRE ±7$ 

cabinet. 1 In the second place, he did not originally intend 
to have any federal ministers at all. According to his plan 
the general supervision and control of the administration 
was to be exercised by the Bundesrath, while those matters 
— such as military and foreign affairs — which, from their 
nature must be entrusted to a single man, were to be con- 
ducted by the King of Prussia as President of the Confedera- 
tion, all others being left in the hands of the several states. 
The Chancellor was to be a purely Prussian officer, who 
should receive his instructions from the king, and be re- 
sponsible to him alone. 2 This plan is very interesting, be- 
cause, although in form it was not accepted, in substance it 
presents an almost exact picture of the real political situa- 
tion, except that the power of the Prussian King has become 
greater than was at first intended. 3 The Liberals objected 
to it, and under the lead of Bennigsen the constituent Reich- 
stag amended the draft of the constitution, by providing 
that the acts of the president 4 should be countersigned by 
the Chancellor, who thereby assumed responsibility for 
them — thus making the Chancellor a federal officer respon- 
sible to the nation. 5 The principle was excellent, but has 
remained unfruitful; for the Chancellor is not responsible 
criminally, and Bismarck refused to hold himself politically 
responsible to any one but the monarch. He always insisted 

1 Cherbuliez, VAllemagne Politique, 2d ed., pp. 228-229. Meyer, in his 
Grundziige des N orddeutschen Bundesrechts (pp. 88-97), discusses Bismarck's 
objections to a collegiate ministry. 

2 Lebon, p. 152. 

3 It is a striking fact that the high imperial officials have usually been 
selected from among the Prussian functionaries. Lebon, p. 157. 

4 This was in 1867, before the King of Prussia was given the title of 
Kaiser. 

5 Const. Art. 17. Unlike matters of military administration, the acts 
of the Kaiser as commander-in-chief of the army are not treated as requir- 
ing a countersignature. Schulze, Lehrbuch, p. 93. 



274 GREATER EUROPEAN GOVERNMENTS 

that the motto " The king reigns but does not govern " 
had no application to the House of Hohenzollern. In short, 
the parliamentary system does not exist in the Empire, and 
the Chancellor is not forced to resign on a hostile vote in the 
Reichstag. If that body will not pass one of his measures, he 
gets on as well as he can without it; or, if he considers the 
matter of vital importance, he causes the Reichstag to be 
dissolved and takes the chance of a new election. 1 

His Functions 

The Chancellor is at the head of the whole body of federal 
officials. Besides he is the chairman of the Bundesrath, and 
is, in fact, its leading and moving spirit. He takes also an 
active part in the debates in the Reichstag, where he is the 
chief representative of the policy of the government. But 
like his royal master he has a double nature, and his functions 
are partly imperial and partly Prussian. It is as Chancellor 
appointed by the Kaiser that he is at the head of the national 
administration, and presides in the Bundesrath; but it is as 
Prussian delegate that he votes in that body, and indeed his 
influence there is mainly due to the fact that he speaks in the 
name of Prussia, and casts as he chooses the twenty votes 
which she controls. In the Reichstag, on the other hand, he 
appears nominally as commissioner for the Bundesrath or as 
one of its Prussian members, while his importance is really 
due to his position as chief of the federal government. 

It is obviously essential to the Chancellor's position that 
he should be the leader of Prussia's delegation in the Bundes- 

1 I do not mean that no imperial official has ever been driven from office 
by the Reichstag. The fall of a minister may be occasionally brought about 
by the opposition of a popular chamber, although there is no general cabinet 
responsibility. Prince Maximilian of Baden appointed to negotiate a peace 
is now insisting (Oct., 19 18) that he is in harmony with the majority in the 
Reichstag, and that his successors will always be so hereafter. 



STRUCTURE OF THE EMPIRE 275 

rath, and should be able to direct her imperial policy. For 
this reason the Chancellor, except for short intermissions, 
has been also the president of the Prussian cabinet; and in 
fact the policy of combining the two offices may now be 
looked upon as settled. 

His Substitutes 

The powers of the German Chancellor in Bismarck's day 
were greater than those of any other man in the world, and 
his work and responsibilities were heavier than even his iron 
frame could bear. In order, therefore, to relieve him in part, 
an act was passed in 1878 providing for the appointment by 
the Kaiser of substitutes, whenever the Chancellor should 
declare himself prevented from doing his work. These 
offices were expected at first to be temporary, especially 
that of Vice-Chancellor, or general substitute, who was in- 
tended to act only during the illness of the Chancellor; but 
with the increase of business they have become a permanent 
necessity, the Chancellor declaring that he is prevented 
from doing his work by the fact that he has too much of it to 
do. For many years there has been a Vice-Chancellor con- 
tinuously, and it has been the habit to make as many of the 
secretaries of state as possible special substitutes for their 
own departments, 1 appointing them at the same time Prus- 
sian delegates to the Bundesrath, in order that they may be 
able to speak both in that body and in the Reichstag. 2 The 
substitutes countersign the acts of the Kaiser in the Chan- 
cellor's stead, but are nevertheless subject to his orders, and 
thus he still remains sole head of the government, and is 
morally responsible for its whole policy. 3 

1 Dupriez, i. 495-497. The substitution can be made only for those 
matters which the Empire administers directly. Dupriez, lb.; Laband, 
i. 358. 2 Dupriez, i. 522. 

3 Laband, i. 359; Dupriez, i. 497-499. The federal administration began 



276 GREATER EUROPEAN GOVERNMENTS 

The Judiciary 

The judicial branch of the imperial government remains 
to be considered. Justice is administered in the first in- 
stance by the state courts; but curiously enough, the organ- 
ization of these courts is regulated by imperial statutes. 1 
Their rules of practice are also derived from the same source, 
for the federal government has enacted general codes of 
civil and criminal procedure, which apply to the state tribu- 
nals. 2 It has, moreover, enacted a universal criminal code, 
a commercial code, and a general code of civil law; so that 
there are in each state a similar series of courts organized on 
an imperial plan and expounding imperial laws in accordance 
with imperial forms of procedure, but whose members are 
appointed by the local sovereign and render their decisions 
in his name. 

The Reichsgericht 

Apart from administrative and consular courts, there is 
only one federal tribunal, called the Reichsgericht, or Court 
of the Empire. It has original jurisdiction in cases of treason 
against the Empire, and appellate jurisdiction from the 

in a very simple form, for there was only one chancery office (Bundeskanzle- 
ramt), divided into three sections, the Prussian officials doing in some de- 
partments a good deal of federal work. But as the number of affairs to be 
attended to has grown, the federal machinery has become more elaborate. 
The general chancery office has disappeared, and there are now many 
separate departments, each with a secretary of state, or president of a bureau 
at its head. Such are the Interior, Foreign Affairs, Navy, Post Office, Justice, 
Treasury, Railroads, Colonies, Invalid Funds, Debt Commission, and Im- 
perial Bank. Laband, 6th ed, § 13, iv. 

1 The Gerichtsverfassunggesetz of Jan. 27, 1877. Laband, § 86, and see 
§ 81. This is true only of the ordinary courts of law, the subject of adminis- 
trative courts being left for the most part in the discretion of the several 
States. See Laband, ii. 368. 

2 The Civilprozessordnung of Jan. 30, 1877. The Strafprozessordnung of 
Feb. 1, 1877. 



STRUCTURE OF THE EMPIRE 277 

federal consular courts and from the state courts on ques- 
tions of imperial law. 1 It is to be observed, therefore, that 
with the completion of the system of national codes the 
imperial tribunal has become a general court of error in all 
cases arising under the ordinary civil or criminal law. 2 

Character of the Federal System 

To sum up what has been said, the German Empire is a 
federal government of a peculiar type, in which legislative 
centralization is combined with administrative decentraliza- 
tion. The centre of gravity is to be found in the body repre- 
senting the governments of the several states, and here 
Prussia has a controlling influence, and a veto on the most 
important matters. In fact, the Confederation is not a 
union of states with equal rights, but rather an association 
of privileged members, so contrived that Prussia has the 
general management, subject only to a limited restraint by 
her associates. And herein there is a marked contrast be- 
tween the American and German federal systems. That of 
the United States is based on the equality of the members; 
and a decided preponderance on the part of any one state 
would destroy the character of the union. That of Ger- 
many, on the contrary, is organized on a plan that can work 
successfully only in case one member is strong enough to 
take the lead, and keep the main guidance in its own hands. 3 
This Prussia does by its king, by the Chancellor whom he 
appoints and by its influence in the Bundesrath. 

1 Laband, § 84. 

2 A state which has several courts of error can create a supreme court 
of appeal and confer upon it the appellate civil jurisdiction of the Reichs- 
gericht, but this has been done by Bavaria alone, and only to a limited extent. 
Laband, 6th ed., p. 341, note 2. 

3 Cf. Dupriez, i. 475-477. 



CHAPTER X 

GERMANY: PRUSSIA AND THE SMALLER STATES 

The interlacing of the powers of the Kaiser as such and as 
King of Prussia has already been illustrated by the process 
of enactment and execution of a federal statute. Another 
striking example may be found in the military institutions of 
Germany. The navy is, indeed, an imperial force wholly 
under imperial management and control. One might sup- 
pose that this would be true also of the army if one looked 
only at the provision in the constitution that the whole land 
force of the Empire shall form a single body under the com- 
mand of the Kaiser in war and peace; and yet German 
jurists disagree on the question whether the Empire has 
legally any troops at all, or has only a right to direct the 
troops of the several states. 1 Except for certain privileges 
reserved to Bavaria, the Empire in fact prescribes the obliga- 
tion of military service, the regulations for the recruiting, 
organization and discipline of the troops and the qualifica- 
tions for officers. It determines the number of men in time 
of peace, and appropriates the money for their maintenance ; 
while the Kaiser, as commander-in-chief, appoints the high- 
est officers, approves the appointment of generals, directs 
the garrisoning of fortresses, and has the right of inspection. 
On the other hand, the monarchs of the several states have 
charge of their contingents, conducting the military admin- 
istration thereof, expending the appropriations voted by the 
Empire, and appointing all the other officers. The authority 
of the King of Prussia is, moreover, distinctly greater than 

1 Laband, Deutsches Reichstaatsrecht, 6th ed., § 40, p. 356, n. 1, 
278 



PRUSSIA AND THE SMALLER STATES 279 

this statement would lead one to suppose, so great as to give 
him practically the management of the troops over most of 
Germany; for, save where imperial military regulations are 
made, those of Prussia must be followed by the other states; 
and in fact all the states, except Bavaria, Saxony, and 
Wurtemberg, have by contract transferred their forces 
bodily to Prussia. The administration of the troops is, 
indeed, so completely in the hands of the states that there is 
no imperial minister of war. Certainly the military func- 
tions of king and Kaiser are inextricably combined. 

With such an organization and distribution of powers, it is 
obviously very difficult for any representative assembly to 
exert a substantial control over the administration or con- 
duct of the army, the more so as the military orders of the 
Kaiser, both as imperial commander-in-chief 1 and as King of 
Prussia, 2 are not countersigned by any minister, and are, 
therefore, not regarded as political acts for which anyone is 
responsible to the legislative bodies. The only serious con- 
trol possessed by the Reichstag is over the size of the army, 
and this is regulated by laws covering usually five years at 
a time. 

Prussia: The Constitution and the King 

The close interlocking of powers in Germany between the 
central government and the states makes a brief description 
of the institutions of the latter necessary for an understand- 
ing of the system. Of these states by far the most important 
is the kingdom of Prussia. 

The present constitution of Prussia was drawn up by the 
king in 1849, submitted for revision to the legislature elected 
in accordance with its provisions, and promulgated in Jan- 

1 Laband, id., p. 358, n. 3. 

2 v. Ronne, Das Staatsrecht des Preitssischen Monarchie, 4th ed., i. 418; 
Meyer, Lehrbuch, p. 187. 



280 GREATER EUROPEAN GOVERNMENTS 

uary, 1850. It can be amended by a majority vote in each 
of the two chambers, sanctioned by the king, but this has 
not been done since 1888 . The method in its creation was in 
accord with its character. It was not the work of the people 
but of the crown whose authority, although limited thereby, 
is not derived from it, or based upon it. In fact, German 
jurists constantly assert in Prussia, 1 and for that matter in 
other states of the Empire, that the monarch is the sovereign 
possessor of all residual political authority; the represen- 
tative bodies having only the powers specifically assigned 
to them by the constitution. Except, therefore, for the 
limitations imposed by that document — chiefly in requiring 
for statutes and appropriations the consent of the legisla- 
ture — the royal authority is regarded by jurists as abso- 
lute. There is, indeed, a provision that the acts of the king 
must be countersigned by a minister who becomes thereby 
responsible for them; 2 but in the absence of any duty to 
resign at the request of the chambers the political respon- 
sibility is only to the king himself. Moreover, his acts as 
commander-in-chief of the Prussian troops and as head of 
the Evangelical Church, and his addresses to the chambers, 
are not in practice countersigned at all. 

The Ministers and the Bureaucracy 

The king acts, of course, through his ministers, but unlike 
the chief officers of state in most countries at the present 
day, they are singularly independent of one another, some- 
times differing considerably in their public policy. 3 There is, 
indeed, a minister president, but he has no real control over 
his colleagues; and there is a collective ministry of state, 

1 E.g., Schulze, Preussen in Marquardsen, pp. 41, 42. 

2 Const., Art. 44. 

3 Cf. Dupriez, i. 361, 363. 



PRUSSIA AND THE SMALLER STATES 28 1 

but it has little legal and scarcely more moral authority. 1 
One can readily see that such a system of ministers, inde- 
pendent of each other in their several departments, but 
strictly responsible to the king, tends to enhance the per- 
sonal power of the monarch if he has the will and capacity to 
exert it. Although the ministers are not responsible to the 
legislature, they have the right, universal in the German 
constitutional states, of appearing and speaking in either 
chamber, a privilege which they use constantly. 

Subordinate to the ministers is the bureaucracy, which is 
certainly a highly efficient body of officials. The qualifica- 
tions and examinations for appointment to this corps of civil 
servants are strictly prescribed and observed, and member- 
ship is permanent; while discipline is maintained by special 
tribunals composed of administrative officials whose con- 
sent is required for dismissal without a pension. 2 Under the 
Prussian system of minute regulation of the everyday life of 
the citizens, such a body of men has great power; and owing 
to the habit of not appointing Social Democrats and other 
opponents of the government to public office that power 
tends strongly to support monarchical, conservative, and 
autocratic principles. The authority wielded by the bureau- 
cracy would probably be regarded as oppressive were it not 
for three facts; first, that the people like to be controlled in 
their daily life to an extent that would be resented among us; 
second, that the officials are not excessively tied down by 
routine or minutely directed from above, but are allowed a 
considerable latitude for the exercise of their own discre- 
tion; and third, that in their dealings with the public they 
are subject to the jurisdiction of a series of administrative 
courts, a majority of the members of the lower ones being 

1 Cf. Id., pp. 367-371. 

2 v. Ronne, §§ 251, 256, 260, 264, 387. 



282 GREATER EUROPEAN GOVERNMENTS 

private citizens elected by the local representative bodies, 
while the highest is composed of men appointed by the king 
for life with the ordinary judicial security of tenure. 

The Landtag 

The Landtag, or legislative body of Prussia, consists of 
two chambers, the Herrenhaus, or House of Lords, and the 
Abgeordnetenhaus, or House of Representatives. Its nor- 
mal life is five years, but the lower chamber may at any time 
be dissolved by the king. It must be summoned to meet 
every year, and all statutes, taxes, loans and the yearly 
budget require its consent. Most of the Prussian jurists, 
however, teach the doctrine that, as the popular chamber 
has not a right alone to repeal the laws, it cannot produce 
the same result by refusing the funds required for their exe- 
cution. 1 This doctrine was put into effect by Bismarck in the 
budgetless years preceding the War of 1866, and perhaps 
might be again. The Landtag has a right to initiate legisla- 
tion, but in fact most bills are introduced by the govern- 
ment, so that its chief activity consists in the consideration 
and amendment of measures submitted to it by the ministers 
of the crown. We may add that the influence of the Landtag 
upon the conduct of the public administration by the royal 
officers is not large. 

The House of Lords consists of about three hundred mem- 
bers, of whom more than one third are hereditary, landown- 
ing nobles, and another third, life members nominated by 
landholders; so that the body is in fact controlled by the 
landed gentry, a class that has a marked character in Prussia. 

1 Cf. Schulze, pp. 102-104; Gneist, Die Militarvorlage von i8q2 und der 
Preussische Verfassungskonflikt. The authorities are collected and dis- 
cussed by Laband, ii. 993-995, 1037 et seq.; v. Ronne (§ 118) is of the con- 
trary opinion. Compare in this connection, Const., Arts. 100, 109. 



PRUSSIA AND THE SMALLER STATES 283 

It is vigorous, resolute, jealous of its rights, conservative in 
temperament, military in spirit, and devotedly loyal to the 
throne. It can be relied upon, therefore, to reject any 
changes proposed by the other house which the king does 
not approve; but is by no means ready to follow him in a 
liberal policy. The greater part of the remaining members 
are appointed by the king for life; a few on the nomination 
of certain bodies, but most of them at his pleasure. These 
last are unlimited in number and thus the king can control 
the house in case of need. The point is important, because if 
the king should, in case of popular upheaval, think the 
preservation of his dynasty depended upon taking the popu- 
lar side, he could legally overcome any opposition on the 
part of the upper chamber. 

The House of Representatives is composed of four hun- 
dred and forty-three members, elected by a suffrage which, 
though substantially universal for all men twenty-four years 
old, 1 is neither equal nor direct. One cause of inequality is 
that there has been little change in the electoral districts for 
nearly sixty years, in spite of the great growth of the cities 
within that period. Berlin, for example, with more than 
one twentieth of all the people of the kingdom, had its num- 
ber of representatives raised in 1906 only to twelve, or to 
about one-half its ratio to population; the reason being, of 
course, the radical tendencies of its citizens. A second cause 
of inequality in the suffrage is the three-class system of 
indirect election. 

The Three-Class System of Election 

The representatives are elected in districts each of which 
is entitled, as a rule, to two members, but often only to one, 

1 The Constitution says twenty-five years old, but the Ordinance of 
May 30, 1849, which regulates the procedure, says twenty-four. 



284 GREATER EUROPEAN GOVERNMENTS 

and sometimes to three. The voters in the district do not, 
however, vote directly for the representatives, but for elec- 
tors chosen in smaller areas into which the district is sub- 
divided. To these lesser areas, one elector is allotted for 
every two hundred and fifty inhabitants, and the voters are 
separated into classes for the purpose of choosing them. 
The first class is composed of the largest taxpayers who 
together pay one third of the aggregate direct taxes; the 
second of the next largest taxpayers who pay another third 
of these taxes; the third class comprises all the rest of the 
voters who pay the remaining third of the taxes. Each of 
these classes chooses separately one-third of the electors to 
which the subdivision is entitled. All the electors chosen in 
the subdivisions then meet together and elect the representa- 
tive, or representatives, of the district by absolute majority 
vote. It follows that the first two classes can wholly control 
the election. 

The effect of the system may be gathered from the state- 
ment that in more than two thousand of the subdivisions 
the first class consists of only one man, and in nearly as many 
more it contains only two men. In 1907, it was estimated 
that about three per cent of all the voters of the kingdom 
belonged to the first class, about nine and one-half per cent 
to the second, and the remaining eighty-seven and one-half 
per cent to the third; so that on the average, less than thir- 
teen per cent of the voters, comprising the richest people, had 
an absolute control of an election to the popular chamber. 1 
The system was devised in order to give everyone a share in 
the direction of public affairs, while retaining for property 
and the bearing of the public burdens, as compared with 
mere numbers, a special weight in the apportionment of 
power ; and it does so with a vengeance. In a country where 

1 Ogg, The Governments of Europe, pp. 259-260. 



PRUSSIA AND THE SMALLER STATES 285 

the social and political cleavage between the different classes 
is so sharp as it is in Prussia the results are very striking. 
Two recent elections will illustrate this. In 1903, the Social 
Democrats cast almost as many votes as the Conservatives, 
but they did not elect a single representative, while the Con- 
servatives elected one hundred and forty-three. At the next 
election in 1908, the Social Democrats polled nearly one 
quarter of all the votes cast and elected only seven of the 
four hundred and forty-three representatives. The effect 
of the three-class system is increased by the fact that the 
ballot is not secret — a matter that is deemed of no small 
importance in Germany on account of the opportunity it 
gives to the government and to employers to exert pressure 
on the voters. 

There has long been a persistent agitation for a change of 
the electoral laws, the more radical elements demanding the 
entire abolition of the three-class system, together with 
direct elections and secret ballot. At last the government 
became convinced of the need of some reform, and in 1 910 
introduced a bill for the purpose; but as it merely lessened 
instead of removing the objections to the system, it did not 
go far enough to satisfy even the moderate reformers, and 
was finally lost by a disagreement between the houses. 1 Dur- 
ing this war, the government has again promised reform, but 
has not as yet overcome the stout opposition of the landed 
gentry. Their repugnance to a radical change is the more 
comprehensible because equal, direct and secret suffrage 
would, in the present social conditions in the country, lead 
to far-reaching changes. It would transfer from them to 
quite a different class the centre of gravity of political power, 
and would no doubt be followed by a demand that the minis- 
ters should be politically responsible to the popular chamber, 

1 Ogg, pp. 262-263. In 1913, they elected only ten. 



286 GREATER EUROPEAN GOVERNMENTS 

thereby changing the whole character of the monarchical 
institutions and of the system of administration depending 
thereon. 

Prussian Local Government 

The principle of placing political power under the con- 
trol of property, rather than of numbers, is applied through- 
out the Prussian government, local as well as central. 
Everywhere there are elected councils, and everywhere the 
lion's share in choosing them lies in the hands of the wealth- 
ier classes. In the cities the municipal council is usually 
elected by the three-class system, while in the rural districts 
all elected bodies are, as a rule, chosen directly or indirectly 
by the Kreistag. This is the assembly of a local area called 
the Kreis, and it is elected partly by municipal councils, 
partly by the larger taxpayers and partly by the rest of the 
voters on a complicated plan so arranged that the great 
majority of citizens elect only a minority of the members. 
The system of local government is efficient, but it is not 
democratic, and, in the cities at least, tends to aggravate 
rather than reduce social discontent. 1 

Bavaria 

Bavaria is the second largest state in the Empire, and its 
political institutions, 2 although differing much in detail 
from those of Prussia, and showing marked traces of French 
influence dating from the Napoleonic period, illustrate the 
pervasiveness of German principles of government. The 
electoral franchise is far more popular than in Prussia, yet 
the personal authority of the king, and the relation of the 
legislature to the ministers and the administration, are very 

1 For a fuller description of Prussian local government, see the writer's 
Governments and Parties in Continental Europe, i. 308-333. 

2 v. Seydel, Bayericshes Staatsrecht, 1913. 



PRUSSIA AND THE SMALLER STATES 287 

much the same. The Landtag is composed of two cham- 
bers. The first, unchanged since 1818, contains royal 
princes, crown officers, high ecclesiastics, mediatized nobles 
and members appointed by the king in heredity or for life, 
with a provision that the life appointments shall not exceed 
one-third of the body. The House of Representatives is 
chosen under laws that have constantly become more demo- 
cratic. The constitution of 18 18 provided for election by 
several different classes of voters; that of 1848 substituted a 
universal equal suffrage of all taxpayers twenty-five years of 
age, but the election was indirect and the ballot was not 
secret. In 1881 the ballot was made secret; in 1906, the 
election was made direct, and in 1907 -1908, payment of the 
members was introduced. Thejiistricts are not alike in size, 
but the suffrage is otherwise now substantially universal, 
equal, direct, and secret so far as the central legislature is 
concerned. In the local government, on the other hand, 
except in the cities, the larger taxpayers are still given a 
special share of power. 

In spite of the extended suffrage the ministers are not 
politically responsible to the popular chamber. For years 
the majority of that chamber, which until 1893 was almost 
continuously in the hands of the clerical party, strove to 
bring about such a result; but they did not succeed, and 
their failure proves that in Germany a democratic system of 
election does not necessarily bring the government under 
popular control. One would suppose that an elected cham- 
ber, holding the power of the purse, could, if it chose, compel 
an hereditary monarch to select ministers in accordance 
with its wishes. But it has not done so in Bavaria; nor was 
the failure due to a peculiarly conservative attitude on the 
part of the crown; for during the period in question, the 
ministers, although not always in harmony among them- 



288 GREATER EUROPEAN GOVERNMENTS 

selves, and by no means the representatives of any party, 
pursued, in the main, a decidedly liberal policy. The result 
shows the persistence of the monarchical principle in 
Germany. 

Wurtemberg, Baden, and Hesse 

Like Bavaria, the other southern states x were more af- 
fected than the northern by the principles of the French 
Revolution, and of late years they have likewise made their 
elections more truly representative of the whole people. Yet 
the control of the monarch over administration and his lead- 
ing influence in legislation are the same that prevail uni- 
versally in Germany. The composition of their upper 
chambers is of the usual type, except that in addition to the 
official, hereditary and appointed members, there are a few 
elected representatives of trade, industry, and commerce. 

Until 1906, the lower house in the kingdom of Wurtem- 
berg consisted of nine ecclesiastics, of the chancellor of the 
university, of thirteen members elected by the landowning 
nobility, and of seventy other members elected in single 
districts by manhood suffrage and secret ballot. Twenty 
years ago, this body was in two respects unique in Germany. 
In no other Landtag composed of two chambers did the 
popular branch contain privileged members, and in no other 
were members elected by direct universal suffrage. The 
first of these peculiarities has now ceased to be true of Wur- 
temberg; the second has ceased to be peculiar and is true in 
all four of the South German states. By an act of 1906, the 
twenty-three privileged members were abolished in Wurtem- 
berg, and all the members are now elected by universal direct 
suffrage and secret ballot. Sixty-nine of them are chosen in 

1 Goz, Das Staatsrecht des Konigreichs Wurtemberg, 1908; Walz, Das 
Staatsrecht des Grossherzogtums Baden, 1909: v. Calker, Das Staatsrecht des 
Grossherzogtums Hessen, 1913. 



PRUSSIA AND THE SMALLER STATES 289 

single districts, while the remaining twenty-three are divided 
among three large districts where they are elected by the 
free list system of proportional representation. 

In the Grand Duchy of Baden, on the whole the most 
liberal of the German states, the suffrage has long been sub- 
stantially universal and the ballot secret; but until fourteen 
years ago the election instead of being direct was conducted 
by means of electors, a method which in the opinion of the 
Germans themselves does not give a free expression to pop- 
ular opinion. In 1904 this was changed, and the election 
was made direct. Curiously enough the cities have rather 
more than their proportion of the members. 

The conditions were much the same in the Grand Duchy 
of Hesse, where the elections were also indirect until 191.1. 
The members are now chosen for six years, one half retiring 
every three years, in single districts, directly, by secret 
ballot of all men over twenty-five years of age who pay any 
direct tax; a slight conservative tendency being shown in 
the provision that men over fifty have two votes. 

As in the case of Bavaria, a widely extended suffrage has 
not as yet caused the ministers in these three states to be 
responsible to the majority of the elected chamber; al- 
though on the whole their governments have pursued a 
liberal policy. 1 

Saxony 

The changes in the composition of the Saxon represent- 
ative chamber during the last century reflect in an illu- 
minating way the shifting currents of political opinion in 
Germany. 2 The mediaeval estates were replaced in 183 1 by 

1 There are, in all three states, provisions whereby divergent action of the 
two chambers on certain matters, chiefly financial, may be settled. This 
is done by a joint sitting, or by counting the aggregate votes in both bodies. 

2 Mayer, Das Staatsrecht des Konigreichs Sachsen, 1909. 



290 GREATER EUROPEAN GOVERNMENTS 

a Landtag or legislature of two chambers. The upper one 
which has remained substantially unchanged, was made to 
consist, in accordance with the common German custom, of 
royal princes, ecclesiastics, nobles, representatives of the 
landed gentry and the cities, and of members appointed by 
the king for life. The other chamber has undergone several 
transformations. In the year following the general Europ- 
ean upheaval of 1830, an act was passed whereby it was 
composed of twenty members elected by the landed gentry, 
twenty-five each by the cities and the peasants, and five 
(later ten) by the traders and manufacturers. The next 
great popular upheaval in 1848 produced for the moment a 
revolutionary change, and a law of that year brought direct 
election by manhood suffrage. But the movement soon 
spent its force and the law was repealed in 1850. The war 
of 1866 and the creation of the federal Reichstag on the 
basis of manhood suffrage, caused that electoral principle to 
prevail again in Saxony. The representatives of the gentry 
were transferred to the rural districts and those of trade to 
the cities, so that the chamber consisted of eighty members 
elected practically by all men twenty-five years of age, 
voting in single districts by direct and secret ballot. Except 
for the fact, usual in Germany, that the cities were under- 
represented, the system was certainly democratic. It lasted 
for a quarter of a century until that bugbear of German 
statesmen, the growth of the Social Democratic party, 
brought about a change. The elections to the Reichstag in 
1893 made it probable that under the existing franchise this 
party would obtain a majority of the seats in the Saxon 
chamber; and to prevent such a result, an act was passed in 
1896 establishing in a modified form the three- class system 
of Prussia. The reason given for the change was the usual 
German argument that electoral rights ought to be propor- 



PRUSSIA AND THE SMALLER STATES 29 1 

tional to taxation. But prolonged agitation and a feeling 
that the restriction had gone too far brought in 1909 an- 
other and more complicated plan to limit democratic tend- 
encies. It was based upon the principle of multiple votes. 
The chamber now consists of ninety-one members elected in 
single districts by direct and secret ballot. Every citizen 
twenty-five years of age who pays any direct taxes has one 
vote. If he pays taxes upon an income, ranging from 1250 
to 1600 marks according to its source, or owns two hectares 
of land or half a hectare of garden or vineyard, or has a 
secondary school education, he has two votes. If he pays 
taxes upon an income ranging in the same way from 1600 to 
2200 marks, or owns more land, he has three votes; if the 
income is from 2200 to 2800 marks, or the land is larger still, 
he has four votes. Men over fifty years of age have an addi- 
tional vote, on the theory that age is conservative; but no 
one has more than four votes in all. This plan is more 
democratic, and has proved distinctly less favorable to the 
privileged classes than that of Prussia, for at the election 
that followed its adoption, the Social Democrats carried 
nearly one- third of the seats; whereas, under the three-class 
system they had carried only one. 

The king has the customary powers of a German mon- 
arch, and as is usually the case, legislation is mainly initiated 
by his ministers. There is, moreover, a curious provision in 
the constitution that a measure introduced by the crown is 
adopted if one chamber passes it and the other rejects it by 
less than a two-thirds vote. 

The Small Monarchies 

The example of Saxony shows either that the tendency to- 
wards popular government is by no means so strong in the 
north of Germany as in the south, or that it is counterbal- 



292 GREATER EUROPEAN GOVERNMENTS 

anced by a dread of Social Democracy. With some notable 
exceptions this is true of the fourteen small northern consti- 
tutional principalities. No one of these contains more than 
half a million inhabitants, and some of them far less. Yet in 
each of them the ruler exercises the usual monarchical pow- 
ers. Each has a Landtag consisting of a single chamber, 
which contains in most cases, beside the representatives of 
the people, members appointed by the crown, or representa- 
tives of privileged classes who might otherwise sit in a sep- 
arate house. On account of the minute size of these states 
and their correspondingly small influence on the current of 
German political life, any changes in their organization are 
important only so far as they throw light on the tendency 
of political thought. But such changes as have taken place 
of late years are hardly general enough for this purpose. In 
Oldenburg, 1 indeed, and Saxe- Weimar, the election of rep- 
resentatives was made direct in 1909 instead of through the 
medium of electors, and at the same time, the suffrage in 
Oldenburg was extended; while in Brunswick, 2 on the other 
hand, where the ducal crown is practically under the control 
of the King of Prussia, a modified form of the Prussian three- 
class system of election for the popular representatives has 
been introduced. This last is not, however, so reactionary 
a change as it might appear, for the Landtag had previously 
been elected by the municipal and communal councils which 
were chosen under a form of local government resembling 
that of Prussia. In the other small constitutional mon- 
archies no very significant changes have taken place. 

1 Schucking, Das Staatsrecht des Grossherzogtums Oldenburg, 191 1. 

2 Rhamm, Das Staatsrecht des Herzogtums Braunsweig, 1908. 



PRUSSIA AND THE SMALLER STATES 293 

The Two Mecklenburgs 

In Gemany, political institutions certainly become less 
democratic as one travels north; and on the shores of the 
Baltic the two Grand Duchies of Mecklenburg-Schwerin and 
its much smaller sister Mecklenburg-Strelitz have an or- 
ganization that remains truly mediaeval. These two states 
are a case of political Siamese twins, for although the Grand 
Dukes are independent sovereigns, there is a common 
Landtag. This body consists of two estates, that of the 
owners of knights' fees, all of whom (some eight hundred in 
number) have a right to sit; and that of deputies from the 
municipal authorities of the cities. The powers and pro- 
cedure of the estates are also archaic. An example of this 
may be seen in the conduct of debates where everyone 
speaks whenever and as long as he pleases, so that in mo- 
ments of excitement no less than twenty members have been 
known to speak at once — a habit that tends, no doubt, to 
save time. The survival of these ancient forms of govern- 
ment is not approved even in Germany, and the Grand 
Duke of Mecklenburg-Schwerin himself has on several 
occasions sought to create a modern representative legisla- 
ture, but has been prevented from doing so by the refusal of 
the landowning knights to give up their privileges. 

Hamburg, Bremen, and Lubeck 

There remain the three hanse cities which are the only 
members of the German Empire republican in form, al- 
though that by no means implies a democratic organization. 1 
The institutions of these city-states differ much in detail, 
but the general plans are so far alike that they can well be 
described together. Each has a Senate and a Biirgershaft, 

1 Bollmann, Das Staatsrecht der Freien Hansestadte Bremen und Lubeck, 
1914. 



294 GREATER EUROPEAN GOVERNMENTS 

the two bodies forming together the legislature; while the 
Senate is the principal factor in the administration, which it 
carries on largely through committees. It is, in fact, treated 
in national affairs as the sovereign of the state. The sena- 
ators, fourteen, sixteen, and eighteen in number, are chosen 
for life by a complex procedure in which both the Senate and 
Burgerschaft take part. 

The Burgerschaft is a much more numerous body, one 
hundred and twenty in Lubeck, one hundred and fifty in 
Bremen, and one hundred and sixty in Hamburg. The 
members are chosen for six years, one-third or one-half retir- 
ing every two or three years. In Bremen the methods of 
election have been little changed since 1854; while in Ham- 
burg and Lubeck they have been altered several times, the 
last changes having been made in 1906 and 1907. In all 
three cities, however, care is taken to keep the control in the 
hands of the more conservative and wealthier people. Bre- 
men has the least undemocratic system. Here every citizen 
may obtain political rights as a burger by paying a small fee, 
but the representatives are elected by eight classes of voters 
so arranged that eighty-two are chosen by persons possessing 
educational or business qualifications, and sixty-eight by the 
rest of the citizens. In Hamburg and Lubeck the electoral 
rights of a burger can be acquired only by citizens who have 
paid an income tax for five consecutive years, and then the 
voters are divided into classes based upon educational, 
official, business, or property qualifications, so that in Ham- 
burg only twenty-four, and in Lubeck only fifteen are 
elected by the poorer citizens. In the case of Lubeck the 
new system is far less democratic than that which prevailed 
in the latter half of the last century. 

The effect of such a distribution of political power has 
been much the same as in the large Prussian cities. Munici- 



PRUSSIA AND THE SMALLER STATES 295 

pal affairs are efficiently conducted, but the fact that in all 
three cities the deputies elected to the Reichstag by uni- 
versal suffrage are Social Democrats — a clear indication in 
Germany of political discontent among the working classes 
— seems to show that the system does not satisfy a large 
section of the people. 

Alsace-Lorraine 

When, after the war with France, the French provinces 
west of the Rhine were ceded to Germany in 187 1, they were 
in an anomalous and unfortunate position. The violent 
objection of the inhabitants to the annexation, and their 
consequent hostility to the Empire, forbade any idea of 
creating a new state with the autocracy and privileges of the 
other members of the confederation. On the other hand, a 
proposal to incorporate the provinces with any existing state 
would have aroused jealousy; nor could any state, except 
Prussia, have annexed them without serious danger to its 
own internal tranquility. The only possible course, there- 
fore, was to treat the country as a dependency of the Empire, 
under the direct control of the imperial authorities. With 
this object the Act of June 9, 1 871, gave the executive power 
to the Kaiser, reserving the legislative for the Bundesrath 
and Reichstag. In response, however, to a demand for some 
measure of self-government, an imperial decree of October, 
1874, created an elected Landesausschuss, or assembly, and 
in 1877 a statute was passed providing that laws for Alsace- 
Lorraine might be enacted by the Kaiser without the con- 
sent of the Reichstag, if the Bundesrath and the Landesaus- 
schuss agreed to them. Two years later another statute gave 
the Landesausschuss a right to originate legislation, and au- 
thorized the appointment of a statthalter or governor, to 
exercise the powers previously confided to the imperial 



296 GREATER EUROPEAN GOVERNMENTS 

Chancellor. Laws might nevertheless still be made for the 
province by the Bundesrath and Reichstag, which were thus 
enabled to disregard local opinion entirely if they pleased. 

The statthalter was, and still is, appointed and removed 
at pleasure by the Kaiser, to whom he is directy subordi- 
nate. He is in fact the minister for Alsace-Lorraine, and as 
such countersigns the acts of the crown. He governs by 
means of a secretary of state and four heads of departments; 
and is assisted by a council of state with merely advisory 
powers. 

In local matters the old French system was in the main 
preserved, all the executive officials being appointed by the 
government, and the local councils being elected by uni- 
versal suffrage. In regard to the central officials, on the 
other hand, the German law was introduced which protects 
them from arbitrary removal. 

The provinces participated to some extent in the govern- 
ment of the Empire for they elected fifteen representatives 
to the Reichstag, and after 1879 the statthalter was au- 
thorized to send to the Bundesrath delegates who could 
speak but not vote. 1 

The motives for annexing Alsace-Lorraine were chiefly 
military, but there was also no little talk about restoring the 
long-lost brothers to the German family. The brothers, 
however, although for the most part German by descent and 
language, cried piteously at being united to the Fatherland, 
and the government was obliged to use its utmost energies 
in trying to reconcile them to their lot, to Germanize them 
and to transplant Germans among them. French writers 
declare that nothing has been accomplished in changing the 
sentiments of the people, while the Germans insist that if the 
result has not been wholly satisfactory the progress has been 
very considerable. 

1 Leoni, Elsass-Lothringen, in Marquardsen. 



PRUSSIA AND THE SMALLER STATES 297 

The Act of ign 

The demand for autonomy in Alsace-Lorraine grew more 
and more insistent. Its spokesmen asked that the internal 
legislation of the province should be freed from the control 
of the Bundesrath and placed in the hands of a legislature of 
its own ; that the executive authority should be transferred 
to an independent head of some kind ; and that the province 
should become fully a state of the Empire. At last the gov- 
ernment determined to yield the first of these demands, and 
to some extent the third was forced upon it by the Reichstag 
during the discussion of the bill. The second has not been 
granted at all. The act of May 31, 191 1, 1 provides that 
Alsace-Lorraine shall be treated as a state of the Empire for 
the purpose of sending delegates to the Bundesrath. 2 But 
as already pointed out the votes of its three delegates to that 
body are not to be counted when needed to give Prussia a 
majority, or the minority required to reject certain measures. 
The act declares that the sovereignty is exercised by the 
Kaiser, who appoints and removes for the purpose a stat- 
thalter. He in turn appoints and instructs the delegates to 
the Bundesrath, countersigns the acts of the Kaiser, and has 
under him, at the head of his administration, a secretary of 
state. 

The legislation for the province is entrusted to a Landtag 
of two chambers. The first contains the bishops and other 
high church dignitaries; the president of the highest court; 
representatives elected by the university, the chief cities, 
chambers of commerce, agriculture and labor; and members 
appointed by the Kaiser for the term of the Landtag, not 

1 In his sixth edition of 1912, §§22, iv. v. 23. Laband discusses this act, 
and prints the greater part of it in an appendix. 

2 Laband (§ 22, v.) notes this as evidence that Alsace-Lorraine is not 
a full state, but only treated as such for certain purposes. 



298 GREATER EUROPEAN GOVERNMENTS 

exceeding in number the other members. The second 
chamber is elected for five years by universal, direct and 
secret ballot. The Kaiser must summon the chambers to 
meet every year, but can dissolve either of them. All their 
acts require his consent, and there is a provision that if the 
Landtag fails to vote the budget, the government can 
make expenditures previously authorized by law or needed 
to carry on the administration. It may be noted also that 
the second chamber cannot increase any appropriation in the 
budget laid before it without the consent of the government, 
and that the first chamber can only accept or reject the 
budget as it comes from the second. The Landtag has full 
power to initiate other laws; and the Kaiser has the usual 
authority to issue ordinances with the force of law when the 
public safety requires it and the Landtag is not in session. 
Except in the case of financial measures, the relations be- 
tween the chambers and the ruler are in fact modeled upon 
those usual in German monarchies. For fear, however, of 
French influence it is provided that the German language 
must be used in the Landtag, and, save in exceptional cases, 
in the schools and by the public officials. 

The new constitution has not been in operation long 
enough before the war to produce definite results, but the 
first Landtag elected showed an independent spirit dis- 
concerting in high places at Berlin. 



CHAPTER XI 

GERMANY: COMMENTS ON THE POLITICAL SYSTEM 

After having surveyed the political structure of the Empire 
and the states, we are in a position to examine the actual 
working of the federal government. This may be said to 
turn upon the relation of the Chancellor to the other organs 
of state; for, like a central wheel that is geared to all the 
others, the Chancellor comes into direct contact with each 
of the imperial authorities. 

The Position of the Chancellor 

It is clear that the Chancellor would occupy an absurd 
position if he were confined to the matters that belong 
strictly to his office, for he would be the chief minister of one 
of the greatest nations in the world, and yet his powers 
would be insignificant. Apart from foreign affairs, the navy, 
and the selection of a few high officers, his executive duties 
would be almost entirely limited to watching over the ad- 
ministration of the imperial laws by the several states, and 
seeing that they complied with the ordinances and regula- 
tions issued, not by him, but by the Bundesrath. In regard 
to legislation, moreover, his very lack of executive powers 
would prevent his exerting an effective control. Represent- 
ing strictly in his capacity of Chancellor neither the King of 
Prussia nor the confederated sovereigns, he would be unable 
to acquire any considerable authority in the Bundesrath. 
He would, it is true, preside over that body; but simply as 
chairman he would be in a situation not much better than 
that occupied by the vice-president in the Senate of the 

299 



300 GREATER EUROPEAN GOVERNMENTS 

United States. Unless he could also speak in the name of 
Prussia, and cast her votes, he would have very little influ- 
ence with the members, and could neither guide legislation 
nor direct the policy of administration. In order, therefore, 
that the Chancellor may be a real minister of state, and 
not a mere inspector and honorary chairman, he must be at 
the head of the Prussian delegation in the Bundesrath. But 
the delegation receives its instructions from the Prussian 
government, and it would be irrational for the Chancellor 
to be given instructions by men whose policy differed from 
his own. Hence he must be in absolute accord with the 
Prussian government, so far as these instructions are con- 
cerned. Nor is this all. The friction between the Chancellor 
and the Prussian cabinet would be intolerable if the latter 
were to administer the imperial laws in a hostile spirit; and 
indeed the relations between the Empire and the kingdom 
are interwoven in such a way that the machinery of state 
can work smoothly only on condition that, so far as they 
deal with the same matters, both governments are conducted 
in harmony, and this can be true only in case both are 
directed by a common will. Now, in view of the fact that 
the Chancellor is the sole head of the imperial administra- 
tion, while the Prussian ministers are seldom completely 
united, it is hardly conceivable that they should be able as a 
body to control his actions; and if one of their number 
should acquire a predominant influence in public affairs, he 
would find it almost impossible not to be the Chancellor. 
Unless, therefore, the Kaiser has the desire and the capacity 
to keep the personal direction of both the imperial and the 
royal government in his own hands, the Chancellor must be 
also the leading minister in Prussia. 

These observations about the position of the Chancellor in 
the Bundesrath apply with equal force to his position in the 



COMMENTS ON THE POLITICAL SYSTEM 3OI 

Reichstag. A minister of state has an influence over an 
elected chamber because he represents the government, and 
a Chancellor who can speak at the same time in the name 
of the federal administration, of the Prussian state, of the 
confederated sovereigns, and of the upper house of the leg- 
islature, has enormous authority at his back. But if he 
possessed only his very limited powers as imperial adminis- 
trator; if someone else represented and cast the votes of 
Prussia in the Bundesrath, so that he was powerless there, 
he would be impotent in the Reichstag also. It follows that 
with the present intricate connection between Prussian and 
imperial affairs, the system can work well only as it was 
designed to work, by placing both in the same hands. 

Why not Responsible to the Reichstag 

There is another and quite different relation possible be- 
tween the government and the representatives of the people, 
it is that of the parliamentary system, where the power of 
the minister comes from his speaking in the name not only 
of the government but also of the majority in the assembly. 
In that case his authority is doubled. There are many rea- 
sons why such a relation has not grown up in Germany. One 
of them has been the vitality of the monarchical principle 
there; another is to be found in the interlacing of powers 
which makes the enforcing of responsibility to any one pop- 
ular body extremely difficult; and there is a third that 
merits further consideration. A parliament holding the 
strings of the public purse, and meeting with tolerable fre- 
quency, has in its hands the means of compelling the mon- 
arch through his ministers to govern according to its wishes, 
and whether it does so or not depends very much on the 
condition of its political parties. If the members are divided 
into two parties only, so that one or other of them always 



302 GREATER EUROPEAN GOVERNMENTS 

has a majority, the parliament is certain in time to bring the 
crown under its control; but if there are a number of small 
groups, it is much easier for the government, by making 
from time to time special concessions to one or more of them, 
to secure a majority on all important occasions, and thus 
remain independent. This is the case in the Reichstag. 

Parties in Germany 

The bitter conflict between the King of Prussia and the 
House of Representatives, which reached its height shortly 
after Bismarck became chief of the cabinet in September, 
1862, and lasted for the next four years, consolidated the 
different political elements in the Chamber into two hostile 
bodies — the supporters and the opponents of the govern- 
ment. The former, who shrunk at times to a mere handful 
of members, were called the Conservatives, while their an- 
tagonists belonged for the most part to a new organization 
known as the Fortschritt or party of progress. The decisive 
victory over the Austrians at Sadowa wrought a sudden 
change in public opinion. Instead of the tyrannical despiser 
of popular rights, Bismarck appeared in the light of the 
champion of German unity and even of liberty, and the re- 
sult was a breaking up of the old party relations and a re- 
arrangement of the political groups on a new basis. 1 The 
Conservatives, who had supported the government, ceased 
to be unpopular, and regained the seats they had lost; but, 
what is more important, each of the great parties split in two. 
A number of the Conservatives, who were more progressive 
in opinion than their fellows, and more in favor of the new 
federal system, left the party to organize another under the 
name of Free Conservatives; 2 and, on the other hand, a 

1 See the articles on the parties in the Reichstag in Unsere Zeit, by Op- 
penheim (1880, i) and Johannes Berg (1882, i, ii; 1883, ii). 

2 Called later the Dcutsch-ReichsparUi. 



COMMENTS ON THE POLITICAL SYSTEM 303 

body of men, including the most influential leaders, sep- 
arated themselves from the Fortschritt, and formed the 
National Liberal party. These men were less dogmatic than 
their former associates, were more inclined to sacrifice the 
ideal for the practical, and, above all, had more confidence 
in Bismarck. 

Thus two new middle parties arose, the four groups 
corresponding fairly well to the four divisions into which, 
according to the theory of Rohmer, 2 all mankind is naturally 
divided — the Reactionaries, the Conservatives, the Lib- 
erals, and the Radicals. Each of the four has continued to 
exist under one name or another ever since the formation of 
the North German Confederation; for although some of the 
members have often broken away and formed new groups, 
these have disappeared after a short time, or been absorbed 
by one of the older bodies. It is therefore worth our while to 
consider these parties a little more closely. The two ex- 
treme ones — the Fortschritt and the Conservative — were 
almost exclusively Prussian; the Conservatives being re- 
cruited chiefly among the lesser nobility or Junkers, and the 
Fortschritt in the larger towns and cities. The Free Con- 
servatives also came mainly from Prussia, the core of the 
party being the greater nobility, from whom the ambassa- 
dors and other high officials were mostly selected. The 
National Liberals, on the other hand, extended far more into 
the other parts of the Empire, and included during their era 
of prosperity almost all the deputies from the smaller North 
German states, and most of the men of liberal views from 
the South. This has been, indeed, the only truly national 
party that the Empire has ever known, all the other groups 
being mainly local, or founded on questions of race, of sect, 
or of class, rather than on general political issues. 

2 Lehre von den Politischen Parteien. Cf. Bluntschli, Charakter u. Geist 
der Pol. Parteien. 



304 GREATER EUROPEAN GOVERNMENTS 

The various kinds of particularists so-called are based 
mainly on questions of race. They are irreconcilables, who 
complain that their province or their race has been unjustly 
treated, and has been forced into a union repugnant to its 
feelings. The most important of them are the Poles, the 
Hanoverian Guelphs, the Danes, and the Alsatians, all few 
in numbers, but uncompromising fighters. On the question 
of religion is founded the Catholic party or Centre, which 
arose when Bismarck entered upon his quarrel with the 
Catholic Church; but which has continued with undimin- 
ished strength ever since, although the original cause of its 
formation disappeared long ago. At the opposite end of the 
social scale from that of the conservative landowners there 
was later formed among the workingmen the party of the 
Social Democrats. Recruited primarily from the discon- 
tented classes in the large cities it has spread so widely over 
the country that it can claim to be considered a national 
party. 

Parties in the Landtags 

It is worth while to observe here that the parties in the 
Prussian Landtag have always been similar to those in the 
Reichstag — except, of course, for certain groups like that of 
the Alsatians, which belong exclusively to other parts of the 
Empire; and, in general, it may be said that in each state 
the parties for national and local politics are very nearly the 
same, so that every party in the Reichstag corresponds to a 
local party in one or more of the states, and every consider- 
able local party appears in the Reichstag either as a sep- 
arate group by itself, or as part of a larger organization. It 
is not, however, possible to say that the parties are divided 
as in France, on national issues, or, as in Italy, on local ones, 
because neither class of issues has a predominant influence; 
and, in fact, owing to the peculiar apportionment of power 



COMMENTS ON THE POLITICAL SYSTEM 305 

between the federal government and the states, the same 
question, as for example that of the rights of the Catholic 
Church, is presented both in the Reichstag and in the 
Landtags. 

Class Strife an Obstacle to Popular Government 

The condition of the classes has had a momentous effect 
on political development. The Prussian nobility have never 
stood like the English as defenders of the lowly against the 
crown. On the contrary, the crown has been the shield of 
the peasants against the oppressions of the great landowners. 
The nobles, moreover, have belonged wholly to one political 
party, so that Prussia has never known that division of its 
aristocracy into Liberals and Conservatives, each furnishing 
leaders to the people, which has been of such inestimable 
value in England. It is, in fact, the strife of noble with 
peasant, of city with country, compelling everyone to look 
to the king as an arbiter, that has given to the crown, and 
the bureaucracy as its tool, so great an influence and re- 
nown. 1 The same cause must continue to produce the same 
effect, and so long as the royal authority endures at all it can 
hardly fail to be strong unless a great party is formed which 
finds hearty support in every rank of life, and can speak in 
the name of the people without distinction of class. 

The material is not well adapted to the formation of great 
parties, for the Germans are so little homogeneous, and their 
traditions of thought are so diverse as to hinder any large 
part of the people from working together for a common end. 
One is constantly struck by the contradictions in the dif- 
ferent phases of German character. Side by side with the 
dreamy, mystical turn of mind, there is a talent for organiza- 

1 This was also true at one time of the monarchy in France, but hardly 
to so great an extent as in Germany. 



306 GREATER EUROPEAN GOVERNMENTS 

tion and a submission to discipline that have made them the 
first military people of the day. Again, we are apt to attrib- 
ute to German scholarship a peculiarly agnostic tendency, 
and yet no rulers in Christendom have the name of God so 
constantly on their lips as the German Kaisers. Nor is there 
the least affectation or cant about this, for the Germans are 
at the same time one of the most religious and one of the 
most skeptical of races. The fact is that the people are 
divided into strata, social and intellectual, which are very 
different from one another in character and tone of thought. 
The various classes are, indeed, separated by an almost im- 
passable gulf. 1 At one extremity we find the noble land- 
owners of Prussia, who form an aristocracy of the most ex- 
clusive type. They are conservative by temperament, mili- 
tary by taste and education, and the privilege which the 
officers still retain in most of the Prussian regiments of ad- 
mitting as comrades only such men as they choose has 
enabled this class to keep the bulk of the offices in the army 
in its own hands. At the other end of the social scale are the 
workingmen, and these on account of their very isolation are 
peculiarly prone to socialism. Between the two extremes 
stand the commercial classes and the Jews, who are de- 
spised by those above them, and disliked by those below. 
The geographical differences are also strongly marked in 
Germany. The south and west were far more thoroughly 
imbued with the principles of the French Revolution, and 
are far more democratic to-day, than the older parts of 
Prussia. The Prussians also are less German, as we com- 
monly understand the German character, than the rest of 
the people. They are more practical, more military, and 
more bureaucratic; and hence the sympathy even between 

1 See an interesting article entitled " Society in Berlin," by Professor 
Geffcken, in the New Review, August, 1892. 



COMMENTS ON THE POLITICAL SYSTEM 307 

the corresponding classes in different parts of the country is 
by no means complete. 

The Growth of Discontent 

Two opposite forces have been growing in Germany of late 
years : one is the belief in military monarchy, which has re- 
ceived no little support among scholars; the other is a spirit 
of discontent, which has made great headway among the 
lower classes; and between the two the liberal elements have 
been pushed into the background. 1 In fact, both of these 
opposing forces derive much of their strength from a com- 
mon source. The change from a theoretical to a practical 
point of view, that has lent potency to the doctrine of mili- 
tary monarchy, applies not only to politics, but also to 
private life, and here it has replaced the enthusiasm for ideal 
and intellectual aims by a craving for material prosperity 
and well-being. 2 The result has been an immense increase in 
the power of the Social Democrats. It would be a great 
mistake, however, to suppose that all the men who vote for 
the Socialist candidates agree with their doctrines. Prob- 
ably a small part of them do so; 3 but the autocratic policy of 
the government, the burden of service in the army, and the 
difficulty of earning a comfortable living, have made a great 
many people discontented, and these vote the Socialist 
ticket as the most effective method of protest. The size of 
the Socialist vote is, therefore, a measure of the amount of 
discontent in Germany, and as such it is highly significant; 
but what will happen if the Social Democrats become strong 

1 Cf. Bamberger, " The German Crisis and the Emperor," New Review, 
April, 1892. 

2 Viscount Bryce comments on this in "An Age of Discontent," Contemp. 
Rev., Jan., 1891. 

3 Cf. Bamberger, supra; and this has been increasingly true since he 
wrote. 



308 GREATER EUROPEAN GOVERNMENTS 

enough to exercise a controlling influence on politics is by no 
means clear. With their increase in numbers in the Reich- 
stag, their leaders have become less violent, and power is 
likely in the future to bring moderation. 

Democracy would Involve Organic Changes 

The intricate connection between the Prussian and the 
federal machinery, which works smoothly so long as both are 
in the hands of a single man, would hardly be possible if the 
people became the real source of power. Suppose, for ex- 
ample, that the Reichstag succeeds in compelling the Kaiser 
to select a Chancellor who enjoys its confidence; 1 suppose 
in other words, that the Chancellor really becomes politically 
responsible to the Reichstag, but that in Prussia the king 
remains free to choose his ministers as he pleased. It is clear 
the government can be made to work smoothly, only on 
condition that the spheres of action of the Chancellor and 
the Prussian cabinet become independent of each other, and 
this will involve a practical abandonment by the latter of 
all interference in federal matters. 

Again, suppose that the Landtag should also acquire the 
power to make the ministers responsible to itself; and with 
its present organization it is highly unlikely that such a 
privilege would be won by the Prussian House of Represent- 
atives, without being obtained by the Reichstag as well. 
In this case, the functions of the Chancellor and the Prussian 
ministers might continue unchanged for a time; but even if 
the same party controlled both bodies, so that the executive 
officers were its instruments both in Prussia and the Empire, 
it is not probable that they would long hold themselves 
responsible to two separate assemblies. The Reichstag, as 

x The new Chancellor, Prince Maximilian of Baden, has asserted in the 
reply to President Wilson, and in his speech to the Reichstag, that this is 
now, and will continue to be, the case. 



COMMENTS ON THE POLITICAL SYSTEM 309 

the representative of a wider public opinion, would grad- 
ually assume the decisive authority in national questions, 
and hence Prussia would either become merged in the Em- 
pire, or else her government would be confined to local 
affairs. In either event, the Chancellor would probably 
cease to be in any degree a Prussian officer, and would ac- 
quire a purely federal character. The Bundesrath also 
would suffer a severe loss of influence if the Chancellor be- 
came responsible to the Reichstag; and it has shown its 
appreciation of this more than once in objecting to the crea- 
tion of responsible federal ministers. The Chancellor would 
no longer speak to it as the delegate of Prussia, but as the 
representative of the Reichstag. In short the Bundesrath 
would fall to the subordinate position occupied by the upper 
chamber in all countries with a parliamentary form of gov- 
ernment. It would not only lose the legislative authority 
it now wields, but it would hardly be suffered to retain the 
power to make executive ordinances and regulations, and so 
direct the policy of the administration. Until such changes 
occur, popular government in Germany can hardly be 
considered on a permanent foundation. 



CHAPTER XII 

AUSTRIA-HUNGARY 

The spirit of the French Revolution was in its essence hu- 
manitarian. It disregarded the narrow distinctions of race 
and country, proclaimed the universal brotherhood of man, 
and offered to all the world the blessings of its creed. Yet 
the great political movements to which it gave rise have 
brought about an increase of race feeling so great that 
peoples of different blood can no longer live peaceably to- 
gether under the same government, and the various branches 
of a race are unhappy until they are all covered by a single 
flag. Race, in other words, has become a recognized basis of 
nationality; and this has produced in Europe two new 
states, and loosened the bonds of two old ones. The ties of 
blood have united Italy and Germany; while England has 
gravely debated a plan for a partial separation between the 
Saxons and the Celts, and Austria has become very seriously 
disintegrated under the strain of racial antipathies. 

Provinces and Races of Austria 

In order to understand the institutions of Austria, it is 
necessary to know something of its peculiar geography and 
ethnology. The official designation of the western half of the 
monarchy — which for convenience I shall call simply Aus- 
tria — is " the Kingdoms and Lands represented in the 
Reichsrath," l and the name implies the utter lack of unity 

1 Cf. Staatsgrundgesetz iiber gemeinsame Angelegenheiten (Dec. 21, 1867), i; 
Ulbrich, Oesterreich, in Marquardsen, p. 14. Gumplowicz contends that 
the use of the name Austria for the western half of the monarchy is correct. 
Das Oesterreichische Staatsrecht, p. 45, note 42. 

310 



AUSTRIA-HUNGARY 3 1 1 

in the nation. Austria is, in fact, a sort of residuum, con- 
sisting of all the territory which belonged to the Empire at 
the time of the compact with Hungary, and did not form a 
part of that kingdom. The country has a most irregular 
outline, touching the Lake of Constance on the west, ex- 
tending on the north into the heart of Germany by means of 
the province of Bohemia, stretching one long arm eastward 
above and even beyond Hungary, and another far to the 
south along the coast of the Adriatic. 

This curiously shaped state is divided into seventeen 
provinces, all enjoying extended political powers, and al- 
most all the theatre of struggles between two or more of the 
different races. 1 Some idea of the number of distinct races 
in the Empire can, indeed, be gathered from the fact that on 
the assembling of the Reichsrath, or parliament, it has been 
found necessary to administer the oath in eight different 
languages. 2 Yet these include only a small part of the 
tongues and dialects that are spoken in the land. Among 
the many races that inhabit Austria there are, however, only 
five important enough to have a marked influence on poli- 
tics. These are: first, the Germans, who comprise scarcely 
more than a third of the population, but possess a much 
larger share of the wealth and culture. They are scattered 
more or less thickly all through the country, and predomi- 
nate along the Danube and in the provinces immediately 
to the south of it. Second, the Bohemians, or Czechs, who 
are the next most powerful race, and compose a majority of 
the people in Bohemia and Moravia. Third, the Poles, who 

1 I call these divisions provinces for the sake of simplicity. Technically, 
some of them are termed kingdoms, others grand-duchies, arch duchise, 
duchies, counties, etc. Cf. Staatsgrundgesetz Uber Reichsvertretung, i; 
Geller, i. 78. 

2 "Austria: its Society, Politics, and Religion," Baroness de Zuylen de 
Nyevelt, Nat. Rev., Oct., 1891. 



312 GREATER EUROPEAN GOVERNMENTS 

form a compact mass in Galicia. Fourth, the Slovenians 
and other Slavs, living chiefly in the southern provinces in 
the direction of Triest and Dalmatia. And fifth, the Italians, 
who are to be found in the southern part of the Tyrol, and in 
the sea ports along the Adriatic. The numbers of the vari- 
ous races in Austria, according to the census of 1910, are as 
follows: 

Germans 9,950,266 

Czechs and Slovaks 6,435,983 

Poles 4,967,984 

Ruthenians 3,518,854 

Slovenians 1,252,940 

Serbs and Croats 783,334 

Italians 768,422 

Others 647,157 

28,324,940 

The Constitution 

The division of the people into several different races is 
one of the most important factors in Austrian politics, and 
we shall return to it later; but first the political organization 
of the country must be explained. When this was re- 
modeled after the war with Prussia, five statutes — all 
bearing the date of December 21, 1867, — were passed, and 
termed the Staatsgrundgesetze, or fundamental laws of the 
state. 1 They are, in fact, the constitution of Austria, and 
can be changed only by a two-thirds vote of both houses of 
Parliament. 2 

1 Ulbrich, pp. 11, 16, Gumplowicz, §§ 25-27. These five laws are commonly 
cited by their titles, which indicate their contents. They are as follows: 
(1) Staatsgrundgesetz iiber die Reichsvertretung (R. G. B. 141). (2) St. G. 
iiber die allgemeinen Rechte der Staatsbiirger (R. G. B. 142). (3) St. G. uber 
das Reichsgericht (R. G. B. 143). (4) St. G. iiber die Richterlichegewalt (R. G. 
B. 144). (5) St. G. iiber die Regierungs- und Vollzugsgewalt (R. G. B. 145). 

2 That is a vote of two thirds of the members present. One hundred 
members constitute a quorum of the lower house in other cases, but for this 



AUSTRIA-HUNGARY 3 1 3 

The Emperor 

The powers of the Emperor are legally much the same as 
in other constitutional monarchies. The fundamental laws 
declare that he governs by means of responsible ministers, 1 
and by statute all his acts must be countersigned by a min- 
ister of state. 2 Practically, however, the ministers are the 
servants of the crown, and not of the parliament, and hence 
the Emperor of Austria can really use his powers with great 
freedom. This result is due to the incessant quarrels be- 
tween the different races, which are too bitterly hostile to 
combine, while no one of them is strong enough to rule 
alone — a state of things that makes it easy for the govern- 
ment to play them off against each other, and have its own 
way. In theory the parliamentary system is in force, but in 
practice the Emperor is so far from being a figurehead that 
since the present constitution was adopted he has actually 
refused to sanction a bill passed by both houses of Parlia- 
ment. 3 Moreover, there was a parliamentary deadlock from 
1897 to 1904, during most of which the government was car- 
ried on without parliamentary assistance, by virtue of a 
provision in the constitutional laws which authorizes the 
crown to make ordinances that have provisionally the force 
of law when the Reichsrath is not in session. 4 

The Reichsrath or parliament of Austria consists of two 
chambers, of which the upper one, called the Herrenhaus or 
House of Lords, is composed of the princes of the imperial 
family, of the archbishops and prince-bishops, of the heads 

purpose the presence of one half the members is required. St. G. Reichsver- 
tretung (as amended by the Act of April 2, 1873), § I 5- 

2 St. G. Regierungsgewalt, § 2. 

1 Law of July 25, 1867, 1 (R. G. B. 101). 

8 This was the bill on Monastic Orders passed by the Reichsrath in 1876. 

4 St. G. Reichsvertretung, § 14. 



314 GREATER EUROPEAN GOVERNMENTS 

of those noble landowning families to which the Emperor 
grants an hereditary seat, and of members whom he ap- 
points for life. 1 The lower chamber, called the House of 
Representatives, is elected for six years, but can be dissolved 
at any time by the crown. 2 The members were formerly 
chosen by the provincial diets. 3 This proved, however, to be 
a source of constant annoyance, because some of the races 
which were struggling for a greater degree of independence 
insisted that the Reichsrath did not legally represent the 
nation, on the ground that the fundamental laws had never 
been properly enacted, and whenever one of those races ob- 
tained control of a diet, it would refuse to allow the repre- 
sentatives to be chosen. The trouble with the refractory 
diets was finally brought to an end on April 2, 1873, by an 
amendment to the fundamental law in the Reichsrath, 
whereby the diets were deprived of all part in the matter, 
and the election was placed entirely in the hands of the pro- 
vincial voters. The House of Representatives was formerly 
elected by a highly complicated system of five different 
classes of voters; but in 1896, additional members of the 
House were added, to be elected by universal suffrage, and 
in 1907, the classes of voters were abolished altogether and 
there was substituted a universal suffrage for all men over 
twenty-four years of age and resident within their districts a 
year, the seats being at the same time increased to five 
hundred and sixteen. These seats are divided among the 
different races roughly in proportion to the taxes they pay, 
the districts being arranged to comprise so far as possible 
only racial groups that are essentially homogeneous — in 
some places, such as Bohemia, where the population is par- 

1 St. G. Reichsvertretung, §§ 2-5. 

2 Id., §§ 18, 19. This power has been used frequently. 

3 Id., § 7. 



AUSTRIA-HUNGARY .3 1 5 

ticularly mixed, separate constituencies being created for 
the electors of each race. 1 

The powers of the Reichsrath extend only to matters fall- 
ing within its competence, and that is limited by the privi- 
leges vested in the provincial legislatures. These privileges 
are secured by the fundamental laws, which declare that all 
matters not specially placed under the control of the Reichs- 
rath are reserved for the diets of the provinces. 2 Austria, 
therefore, while theoretically a unitary state, has in practice 
very much the aspect of a confederation. 

The Provinces 

Some of the provincial diets are turbulent bodies, and it 
has often required a stern exercise of authority to keep them 
within bounds. The power of the Emperor to control them 
is, indeed, very great. Not only do their measures require 
his sanction, 3 which is often refused, but he also appoints the 
presiding officer, who arranges the order of business, 4 can 
forbid the consideration of any matters not within the com- 
petence of the diet, 5 and when so directed by the crown can 
close the session or dissolve the diet at any time. 6 This right 
is used very freely; and it has not infrequently happened in 
periods of great excitement, when a diet has become a centre 
for political agitation, that a session has been closed almost 
as soon as it was opened. 

It has been said that although Austria is virtually a federal 
state so far as legislation is concerned, yet as regards the 

1 Ogg, The Governments of Europe, pp. 469-472. 

2 St. G. Reichsvertretung, §§ 11, 12. 

3 E.g., The Landesordnung, of Feb. 26, 1861, for Lower Austria, § 17. 

4 Id., §§ 4, 10, 36. This officer in most of the provinces is called the 
Landmarschall; in others the Landeshauptmann, Prdsident, or Oberstland- 
marschall. 

5 Id., § 35. 
9 Id., § 10. 



316 GREATER EUROPEAN GOVERNMENTS 

executive branch of the government, which in the Empire is 
the more important of the two, it is centralized, because the 
provincial executive is not responsible to the diets. 1 To a 
great extent this is true; for numberless matters that form 
a part of the general administration are in the hands of a 
statthalter or Landesprasident, appointed by the crown, and 
independent of local control. 2 

The Race Question 

We have seen how many different races there are in Aus- 
tria, and it is not too much to say that each of them is not 
only anxious to be entirely free from control by others, but 
if strong enough wants supremacy for itself. It is, therefore, 
clearly impossible to content them all, and the policy has 
been a sort of makeshift that contents none of them. The 
most powerful, the richest, the best educated, and the most 
widespread of the races, is the German, which assumes that 
Austria is, and ought to be, essentially a German country. 
This people would like to see its own tongue the official 
language in all the provinces; but although the most power- 
ful of the nationalities, it has been weakened by a division 
into Liberals and Clericals, and still more by the tendency 
of the Liberals to fight among themselves. 

It is needless to say that the other races do not agree to 
the assumption that Austria is essentially German. On the 
contrary, they are incessantly striving for greater recogni- 
tion of their own rights. The most important of them, be- 
cause the most numerous and the most aggressive, is that of 
the Czechs of Bohemia and Moravia. They demand what 
they call the restoration of the Crown of Saint Wenceslaus 

1 Karel Kramar, " La Situation Politique en Austriche," Ann. de VEcole 
Libre des Sci. Pol., 1891, p. 662. 

3 Cf. Law of May 19, 1868 (R. G. B. 44). 



AUSTRIA-HUNGARY 3 1 J 

which means a union of Bohemia, Moravia, and Silesia as a 
separate kingdom, connected with the rest of Austria only 
by a tie similar to that which binds Austria and Hungary 
together. 

The next most influential race is that of the Poles, who 
have the advantage of forming a compact mass in a single 
province, and who have had the wisdom to understand the 
true basis of political power in Austria. They see that their 
fortunes must depend on the goodwill of the crown, and 
hence they are ready to vote with the government on im- 
portant measures, in consideration of favors at home. Al- 
though they are divided in Galicia into an aristocratic and 
democratic party, they present a united front at Vienna; 
and as it is known that they are ready to assist any govern- 
ment that treats them kindly, all parties are willing to buy 
their support with concessions. 

The other important races in Austria, the Italians and the 
southern Slavs, have had their hands pretty well filled by the 
quarrels among themselves and with the Germans. The 
Italians from the southern Tyrol would, indeed, like their 
part of the province separated from the rest; but the 
Slovenians and the other Slavs have been for the most part 
too anxious for help from the central government to pursue 
an active policy of disintegration. 

The problem of race in Austria is extremely difficult. Two 
methods of dealing with it can be imagined. One of them is 
the creation of a centralized government, in which the Ger- 
mans, like the Magyars in Hungary, should play the part of 
the dominant race and force the rest of the people to adopt 
their language, their habits, and traditions. Such a solution 
might, perhaps, have been possible at one time if the Ger- 
mans had possessed the vigor and tenacity of the Magyars, 
if they had acted solidly together, and if they had been con- 



318 GREATER EUROPEAN GOVERNMENTS 

sistently supported by the crown. But an attempt to carry 
out this policy has long been hopeless. The other method of 
dealing with the problem would have been that of breaking 
up the Empire into a confederation based upon the different 
nationalities. But this would have been like trying to 
divide a cake among several children, one of whom wanted 
the whole of it, while another claimed a half, and three or 
four more were crying for a quarter apiece. The fact is that 
the races are not separated by sharp geographical bound- 
aries. Except in Galicia 1 and the southern Tyrol the races 
are almost everywhere more or less intermingled, few dis- 
tricts being inhabited solely by one nationality, and the 
whole of no race living in a separate region by itself. Yet in 
any part of the country where it predominates, and some- 
times where it does not, each race would like to be supreme. 
Clearly some compromise is unavoidable. Whether any 
middle course between centralization and disintegration can 
be successful, it is hard to say; but whatever policy is pur- 
sued, it is clear that no durable solution of the problem can 
be reached until the people have learned to regard it as 
permanent and legitimate. This sounds tautologous, but 
it is really important. 

Hungary: the Races 

There are four leading races in Hungary, the Magyar, the 
Slav, the German, and the Roumanian. 2 The oldest of these 
is the Roumanian, which claims to have sprung from the 
Roman colonists and the Romanized natives near the mouths 

1 Even in Galicia the Ruthenians, who belong to the poorer class, claim 
distinct racial rights. 

2 By the census of 1910, the numbers of the races in Hungary were as 
follows: Magyars, 10,050,575; Germans, 2,037,435; Slovaks, 1,967,970; 
Roumanians, 2,949,032; Croats and Serbs, 2,939,633; Others, 941,842. 
Total, 20,886,487. 



AUSTRIA-HUNGARY 3 1 9 

of the Danube, and the members of the race certainly speak 
a language that has a close affinity with Latin. They live 
in the eastern part of the kingdom, and are especially nu- 
merous in Transylvania. By religion, they belong partly 
to the Orthodox Greek Church, and partly to the so-called 
United Greek Church — a body formerly Orthodox Greek 
which has become united to the Roman Church, but has 
retained the married clergy and the right to pronounce the 
liturgy in the vernacular. 

The Slavs are, no doubt, the next most ancient race in 
Hungary, although the precise time of their migration into 
the country is obscure. They are now broken up into two 
distinct branches, that of the Slovaks in the north; and 
that of the Croats and Serbs, who inhabit Croatia, in the 
southwest, and extend along the whole southern border of 
the kingdom. Croatia, indeed, whose population is almost 
wholly Slav, was never completely incorporated in Hungary, 
and although subject to the Hungarian king after 1 102, kept 
its national institutions, and was governed by means of a ban 
or viceroy and a separate diet of its own. The Slavs are 
divided into Catholics, and Orthodox and United Greeks. 

The Teutonic hordes that swept over Hungary at the time 
of the downfall of the Roman Empire of the west have left no 
permanent traces, and the Germans who live there to-day 
are descended from the more peaceful immigrants of later 
times. They are found in considerable numbers in the cities 
throughout the centre of the land from west to east, but no- 
where do they form the bulk of the population, except in 
certain parts of Transylvania. 

The Magyars, who live chiefly in the vast plains that 
cover the centre and west of Hungary, although a minority 
of the whole people, are the most numerous and by far the 
most powerful of the races. They have ruled the country 



320 GREATER EUROPEAN GOVERNMENTS 

ever since their first invasion at the close of the ninth cen- 
tury, and in fact they regard it as peculiarly, and one may 
almost say exclusively, their own. The fact that the Mag- 
yars are not Aryans has probably been one of the chief 
causes of their failure to assimilate the other races, but in 
some ways it has been a source of strength. It has pre- 
vented them from looking for support and sympathy, like 
the Germans and the Slavs, to their kindred in neighboring 
countries, and thus by making them self-dependent has 
increased their cohesion and intensified their patriotism. 1 

The Hungarian King 

The monarch, who bears in Austria the title of Emperor 
and in Hungary that of King, presents to the Parliament be- 
fore his coronation a diploma containing a promise to main- 
tain the fundamental laws and liberties of the land; and this 
is published among the statutes. He has the ordinary pow- 
ers of a constitutional sovereign, but these are somewhat 
more carefully guarded than usual, on account of the anom- 
alous position in which the country has stood so long. 2 In 
his case the requirement of a countersignature is no mere 
formality, for the cabinet is far less subject to the control of 
the crown than in Austria, and is in fact really responsible in 
the parliamentary sense of the term. 

The Hungarian Parliament 

The Parliament (Orszaggyules) is composed of two cham- 
bers, which bear the ancient names of the Table of Magnates 
(Forendihar) and the Table of Deputies (Kepviselohar). 

1 Ulbrich, pp. 149^153. 

2 The right to bear the title of Apostolic King was conferred by Pope 
Sylvester II in iooo upon Stephen of Hungary, the royal convert to 
Christianity. 



AUSTRIA-HUNGARY 3 21 

The Table of Magnates, as the name implies, is an old and 
aristocratic body. The Table of Deputies is a representa- 
tive chamber containing four hundred and fifty-three mem- 
bers. Of these forty are elected by the diet of Croatia, and 
take part only in matters that affect their province; for 
Croatia has a right to regulate a large class of subjects in its 
own diet, and is to that extent independent of the legislature 
at Buda-Pesth. Hence there are, as it were, two parlia- 
ments, a smaller one which attends to all matters that relate 
to Hungary in the narrower sense of the name, and another, 
formed by the addition of the members from Croatia, which 
deals with the subjects that concern the whole kingdom. 
The Table of Deputies for Hungary proper contains, there- 
fore, four hundred and thirteen members, and these are 
elected on a limited suffrage which favors the Magyars. 

Although the Magyars form less than one half of the popu- 
lation of Hungary, they are more energetic, more aggressive, 
and better organized than the other races; and the restricted 
suffrage, the oral voting, and the arrangement of electoral 
districts tell so strongly in their favor, that except for the 
forty members from Croatia they hold all but about a score 
of the seats in Parliament. Moreover, they have long been 
the ruling caste, and have the habit of command. They feel 
that Hungary belongs to them, and although since 1848 they 
have admitted men of other blood to a share of political 
power, they do not intend to let the control slip from their 
own hands. No line is drawn between the races in the sense 
of excluding any person from civil or political rights on 
account of his birth. The test of citizenship, the qualifica- 
tions for the franchise, are the same for every one; and in 
fact the Magyars do not want to keep the other races dis- 
tinct and in subjection: they propose to absorb them all, 
and make Hungary a homogeneous nation of Magyars. 



322 GREATER EUROPEAN GOVERNMENTS 

With this object they have insisted on proclaiming Magyar 
the national language. It must be exclusively used in Parlia- 
ment, except by the members from Croatia who are allowed 
to speak in their own tongue. It is the official language of 
the administration, the courts, and the university, and it 
must be taught in the public schools. 

This does not apply to Croatia whose people were too 
homogeneous and too strong to be treated in quite so high- 
handed a manner. The field left to the local authorities 
there includes education, police, the administration of jus- 
tice, and a large part of the ordinary civil and criminal law. 
The province has its own organs of government, the most 
important of which is the diet, or legislature. This body 
must be summoned every year, but can be adjourned or dis- 
solved at pleasure by the king, and requires the royal sanc- 
tion for the validity of its acts. In saying this, however, it 
must be remembered that the powers of the king are really 
exercised by the Hungarian cabinet at Buda-Pesth. Croatia 
is thus an integral part of Hungary, but has retained a con- 
siderable amount of autonomy, and differs in this from every 
other part of the kingdom. 

The Dual Monarchy 

The first connecting link between Austria and Hungary is 
the monarch himself, whose functions in the two countries 
are, however, carefully distinguished. He begins his reign 
with two separate coronations — one at Vienna, where he 
takes the oath before the Reichsrath, the other at Buda- 
Pesth, where he is crowned with curious symbolic rites, full 
of oriental pomp. This dualism is carried out even in his 
title; for the Magyars are great sticklers about form in mat- 
ters that involve a recognition of Hungary's equality with 
the rest of the monarchy. By an order of Novermber 14, 



AUSTRIA-HUNGARY 3 23 

1868, he is styled " Emperor of Austria, King of Bohemia, 
etc., and Apostolic King of Hungary." 1 The Emperor-King 
has the command of the joint army and navy; supervises 
the administration of matters common to both countries, 
and has power to make ordinances in regard to them. He 
appoints for the direct control of these matters joint min- 
isters for Foreign Affairs, for War, and for Finance. 

The Delegations 

The deliberative body of the dual monarchy is one of the 
most extraordinary political inventions of modern times. It 
consists of two delegations l — one from Austria, the other 
from Hungary — each composed of sixty members, of whom 
twenty are chosen by the upper and forty by the lower house 
of each parliament. 2 The delegations are reelected annually, 
and must be summoned to meet by the Emperor at least 
once a year. In everything that relates to their sessions and 
procedure the most scrupulous regard is paid to the equality 
of the two countries. Their meetings, for example, are held 
alternately at Vienna and Buda-Pesth, 3 and the proposals of 
the government are laid before both bodies at the same time. 
In the Austrian delegation all the proceedings are in Ger- 
man; in the Hungarian, in Magyar; 4 while all communi- 
cations between the two are made in both languages. It 
seems, indeed, to have been the object of the Hungarian 
statesmen, not only to maintain the equality of the two 

1 Cf. The Austrian Law of Dec. 21, 1867, §§ 6-35; Ulbrich, pp. 20-22; 
Gumplowicz, §§ 104-107. 

2 One half as many substitutes are elected in the same way. 

3 This is not required by the Act of Dec. 21, 1867, which provides (§ 11) 
simply that the meetings shall be held where the crown appoints, or, as the 
Hungarian Law (§ 32) says, where His Majesty is residing. 

4 An exception is made in favor of the Croats, who are allowed to speak 
their own language. 



324 GREATER EUROPEAN GOVERNMENTS 

nations, but also to keep them apart, to avoid all appearance 
of a common parliament, for the delegations debate and vote 
separately except in a single case. If they disagree about 
any measure, and after the third exchange of communica- 
tions an accord is not reached, either delegation may de- 
mand a common session. Here again the equality of the two 
countries is carefully preserved, for the two presidents take 
turns in presiding, the journal is kept in both languages, and, 
what is far more extraordinary, it is especially provided that 
the same number of delegates from each country shall take 
part, the side which has most members present being re- 
duced by lot until the two are equal. In the joint session no 
debate is permitted, and the only business transacted is the 
taking of a vote on the matter about which the delegations 
have failed to agree. The procedure, therefore, is a peculiar 
one. The two bodies debate and vote separately, except in 
case of a deadlock, when they vote but never debate 
together. 

It is important to observe that the delegations are prac- 
tically confined in their action to voting supplies, and exert- 
ing a control over the administration. Those subjects, which 
in other federal governments fall within the province of the 
central legislature, are regulated in the dual monarchy by 
concurrent statutes of the two parliaments, and thus nearly 
everything in the nature of positive law must be enacted 
separately in Austria and Hungary. In substance, therefore, 
the whole joint legislation of the monarchy is a series of 
treaties, partly permanent and partly temporary, which can- 
not be changed or prolonged by any common legislature, but 
only by the contracting parties themselves. We have thus 
a unique case of almost absolute legislative decentralization, 
combined with a certain amount of administrative centrali- 
zation, the laws on matters of common interest being en- 



AUSTRIA-HUNGARY 3 25 

acted by the separate legislatures, and only their execution 
being entrusted to the organs of the federal government. 
Hence the work of the delegations consists mainly in the con- 
trol of the common administration, and in granting the 
annual appropriations. 

The Customs Union 

Except for a few insignificant matters, such as the lease of 
state property, the sale of old material, and the profits of the 
powder monopoly, the only direct source of revenue belong- 
ing to the joint government is the customs tariff, which rests 
upon a treaty between the two countries made for ten years 
at a time in the form of identical acts of the two parlia- 
ments. These laws establish a uniform tariff for the whole 
monarchy, and provide that neither country shall lay any 
duty on goods coming from the other, except to the amount 
of his own excise on the same commodity. The duties, how- 
ever, although paid into the common treasury, are not 
collected by the joint government, but by the separate 
countries, which have nothing to do with each other's 
customhouses, except the right of mutual inspection. 

The Joint Ministers 

There are three joint ministries — those for foreign affairs, 
for war, and for finance. 1 The Minister for Foreign Affairs 
is at the head of the diplomatic corps, and has entire charge 
of the foreign relations of both countries, for the separate 
halves of the monarchy hold no direct communication with 
other nations. He consults frequently, however, the premiers 
of Austria and Hungary, who, in turn, are often interpel- 

1 The Minister for Foreign Affairs formerly bore the title of Imperial 
Chancellor, but the Magyars thought this savored too much of a consolidated 
state, and in 1871 it was changed. 



326 GREATER EUROPEAN GOVERNMENTS 

lated and make statements on the subject in their respec- 
tive parliaments. He also gives to the delegations such 
information as he thinks best; but from the secret nature of 
diplomatic negotiations his reports are necessarily far more 
meagre than those of the other ministers. 

The next department of the joint administration is that of 
war, and here again is found the strange mixture of federal 
union and international alliance that is characteristic of the 
relations of Austria and Hungary. 1 The regular army and 
the navy are institutions of the joint monarchy, although 
they are governed by separate standing laws of the two 
states, which are, of course, substantially identical. These 
laws determine, among other things, the number of the 
troops, and provide that the men shall be furnished by the 
two countries in proportion to population; but the contin- 
gent of recruits required from each country is voted annually 
by its own parliament. After the recruits are enlisted they 
are commanded and paid by the joint administration. The 
Emperor, as commander-in-chief, appoints the officers, and 
regulates the organization of the army. The minister of war, 
curiously enough, is not required to countersign acts of this 
nature, 2 but he is responsible for all other matters, such as 
the commissariat, equipment, and military schools. Besides 
the regular army, which belongs to the joint government, 
there are military bodies, called in Austria the Landwehr, 
and in Hungary the Honveds, which are special institutions 
of the separate halves of the monarchy. These troops are 
composed of the recruits that are not needed for the con- 
tingents to the regular army, and of the men who have 
already served their time in it. 

The third department of the joint administration is that 
of the finances, which caused no little trouble when the com- 
1 Cf. Ulbrich, pp. 23-25. 2 Law of Dec. 21, 1867, § 5. 



AUSTRIA-HUNGARY 3 2J 

pact was made in 1867. After a good deal of discussion it 
was finally settled that Hungary should contribute twenty- 
nine and a half millions of florins a year towards the interest 
on the existing debt, and that Austria should pay the rest, 
enjoying, however, the benefit of any reorganizations, or in 
other words repudiation, she might make — a privilege of 
which she subsequently took advantage in the form of a tax 
on the national creditors. In regard to the current expenses 
of the joint monarchy, it was finally arranged that they 
should be defrayed so far as possible out of the joint revenue, 
and that any balance should be paid, sixty-three and six- 
tenths per cent by Austria and thirty-six and four-tenths 
per cent by Hungary, that ratio being based upon the sums 
raised by taxation in the two countries. 

Bosnia and Herzegovina 

Curiously enough, there is a district which forms part 
neither of Austria nor of Hungary, but is ruled directly by 
the federal officials. 1 The district did not belong to the 
monarchy when the compact of 1867 was made, but was 
acquired in 1878, after the Russo-Turkish war. At that 
time the Great Powers met at the Congress of Berlin, and 
agreed to protect Turkey against the grasping ambition of 
Russia by lopping off pieces of her territory for the benefit 
of one another. Austria's share of the booty consisted of 
Bosnia and Herzegovina, and, although these provinces re- 
mained until 1908 under the nominal suzerainty of the Sub- 
lime Porte, the administration of them being alone confided 
to Austria-Hungary they were virtually annexed for all pur- 
poses to the dominions of the House of Hapsburg. Now it 
would have been impracticable to divide the territory be- 
tween Hungary and Austria, and neither half of the mon- 
1 Ulbrich, pp. 27-28. 



328 GREATER EUROPEAN GOVERNMENTS 

archy would have consented to its annexation as a whole by 
the other. Hence the only possible course was to rule the 
provinces in common as a subject land. The two parlia- 
ments, therefore, passed laws providing that the adminis- 
tration of the provinces should be organized and carried on 
by the monarch and the joint ministers, reserving, however, 
to the cabinets of Hungary and Austria a right to an in- 
fluence in the matter, that is, a right to be consulted in 
regard to it. Finally, after these provinces had been def- 
initely annexed in 1908, they were given a diet of their own 
to deal with local affairs. 

The Character of the Union 

If France has been a laboratory for political experiments, 
Austria-Hungary is a museum of political curiosities, but it 
contains nothing so extraordinary as the relation between 
Austria and Hungary themselves. The explanation of the 
strange connection is to be found in the fact that the two 
countries are not held together from within by any affection 
or loyalty to a common nation, but are forced together by a 
pressure from outside which has made the union an inter- 
national and military necessity. The union has been, there- 
fore, unavoidable, and it is very little closer than is abso- 
lutely necessary to carry out the purposes for which it exists. 
There is a common army, a common direction of foreign 
affairs, and a terminable customs union, which is, after all, 
the most convenient method of defraying part of the cost of 
the military establishment. There is no single authority 
that has power to settle anything, but every measure in- 
volves a negotiation between the two delegations or the two 
parliaments, and government becomes in consequence an 
endless series of compromises between bodies belonging to 
different races which are jealous of each other. Moreover, 



AUSTRIA-HUNGARY 3 29 

the source of legislation lies in the two parliaments, and to 
these the joint ministers have no access. It is in fact 
specially provided that they shall not be members of either 
cabinet. They are unable, therefore, to lead the parlia- 
ments; and that the parliaments cannot control them was 
clearly shown in 1878, when the annexation of Bosnia and 
Herzegovina was carried through against the wishes of both 
legislatures. The ministers of Austria are at least nominally 
responsible to the lower house of the Reichsrath, and those 
of Hungary are actually responsible to the Table of Dep- 
uties, but the joint ministers are not in fact directly re- 
sponsible to any legislative body. 



PRINTED AT 

THE HARVARD UNIVERSITY PRESS 

CAMBRIDGE, MASS., U. S. A. 



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